"With these actions, EPA and the corps have demonstrated a brazen disrespect for the notice-and-comment rulemaking that forms the backbone of proper regulatory action by giving the states and interested parties an opportunity to comment upon proposed rules before implementation," the lawsuit states.
But Pat Parenteau, an environmental law professor at Vermont Law School, said such a case might be tough to make, given that EPA has not taken a final action yet, such as issuing final guidance or actually rejecting a permit that it reviewed.
"A court isn't likely to intervene at this early juncture," Parenteau said. Last week, EPA lawyers made that very argument in seeking to dismiss a similar lawsuit filed in July by the National Mining Association.
Huffman said DEP officials have been waiting for EPA to take some final action that would legally easier to challenge, but finally decided they had to move forward anyway because of continued delays for mine operators looking to obtain new permits.
Manchin noted that of 23 West Virginia permit applications identified a year ago by EPA for closer review, only two have since received final approval by EPA and the Corps of Engineers.
EPA records show that mine operators have withdrawn six of the other applications, and that EPA's more detailed review on the other 15 has not begun because federal officials are waiting for companies to provide more information that EPA requested.
In the case of the two permits that have received final approval, deals worked out by EPA officials allowed operators to mine much of the coal they were after, while also greatly reducing the water quality impacts.
"EPA continues to be willing to work with industry to reach common sense agreements allowing them to mine coal while avoiding permanent environmental impacts and protecting water quality," said EPA spokesman Brendan Gilfillan.
Manchin ordered the lawsuit against EPA as he enters the final month of a campaign for U.S. Senate against Republican John Raese, who has argued the Democratic governor would be a "rubber stamp" for President Obama if voters send him to Washington.
At his press conference, Manchin invoked "the spirit of Sen. Robert C. Byrd," who held the Senate seat for decades. The governor took out a copy of the U.S. Constitution and read the 10th Amendment, which reserves for states and the people rights not specifically granted to the federal government.
Bailey, the DEP's attorney, later said the lawsuit does not specifically raise 10th Amendment legal claims.
Raese campaign spokesman Kevin McLaughlin said in an e-mail to reporters that Manchin had taken "absolutely no legal action against the EPA's regulations until he dropped behind in the polls just weeks before the election."
Bill Raney, president of the West Virginia Coal Association, said, "I'm pleased that we finally got to the point of filing a suit. EPA will not issue permits. They will not let anything go. We've got to get to the point of certainty."
Joe Lovett, executive director of the Appalachian Center for the Economy and the Environment, said the lawsuit against EPA appeared to be aimed only at helping Manchin's Senate campaign. "This is pure grandstanding," Lovett said.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.