The U.S. Army Corps of Engineers had issued permits for Mingo Logan’s 2,300-acre Spruce No. 1 mine in Logan County, W.Va., which would have been the largest mountaintop mine. Last year, the EPA revoked the permit, the first time the agency had revoked an existing permit in its 40-year history. This is a major victory for Arch Coal, which owns Mingo Logan, and sued the EPA.
Following the agency’s logic is difficult if not comical as Judge Jackson explained. “First and foremost, the EPA’s interpretation fails because it is illogical and impractical. The EPA claims it is not revoking a permit—something it does not have the authority to do—because it is only withdrawing a specification,” Judge Jackson wrote. “Yet the EPA simultaneously insists that its withdrawal of the specification effectively nullifies the permit. To explain how this would be accomplished in the absence of any statutory provision or even any regulation that details the effect that the EPA’s belated action would have on an existing permit, the EPA resorts to magical thinking. It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof! Not only is this non-revocation revocation logistically complicated, but the possibility that it could happen would leave permittees in the untenable position of being unable to rely upon the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.”
“The U.S. District Court for the District of Columbia struck another blow for restoring the rule of law and regulatory certainty by rejecting the EPA’s view that it has unbounded authority to retroactively revoke permits issued by another federal agency. The current permitting process is already a protracted and complicated affair. If we are to encourage investments, grow our economy and create jobs, companies need the certitude their success in obtaining permits will not be later robbed by the whims of the EPA,” said National Mining Association President and CEO Hal Quinn.
The ruling comes on the heels of the recent decision by the U.S. Supreme Court in Sackett v. EPA, which found the EPA’s compliance orders under the Clean Water Act are immediately subject to judicial review. “That’s an important reminder of the due process rights afforded by our Constitution,” Quinn said.
