"His ruling affirms our view that the Congress did not grant [the] EPA sweeping powers under the Clean Water Act to arbitrarily delay permits or develop a new permitting process that usurps the role of the corps as the 404 permitting authority," said Hal Quinn, president of the National Mining Association. "With this decision, coal communities can get back to the business of producing affordable energy for Americans and put more Americans back to work."
By voiding the EPA's permit review coordination procedures, Walton's ruling affects only 21 permit applications -- eight in West Virginia and 13 in Kentucky.
Also, Walton made it clear the EPA retains its near-absolute authority under the Clean Water Act to veto corps permit approvals for mining operations EPA experts believe would have "unacceptable adverse impacts." Earlier this year, the EPA used that authority to veto a corps-approved permit for Arch Coal's Spruce No. 1 Mine in Logan County, the largest single mountaintop removal permit in West Virginia history.
Arch Coal is challenging that action in federal court, but environmental groups already are calling on the EPA to use this veto authority on other permits. Emma Cheuse, a lawyer with the group Earthjustice, said it is "vital" for the EPA to use that authority "and veto any permit that would cause unacceptable harm to U.S. waters."
At the same time, the West Virginia Coal Association on Friday urged Congress to act quickly to pass legislation - co-sponsored by Rahall and Reps. Shelley Moore Capito and David McKinley, both R-W.Va. - that would take away the EPA's veto authority and otherwise strip the EPA of water permit oversight powers.
"Congress and the president could bring an end to the EPA's assault on jobs today," said Bill Raney, president of the state Coal Association.
Among other things, the legislation essentially would end the EPA's ability to block Clean Water Act pollution discharge permits, which are issued separately from "dredge-and-fill" authorizations, by objecting to those permits until impacts are sufficiently reduced.
That issue isn't addressed by the lawsuit pending against the EPA.
For now, Walton's ruling leaves standing the EPA's new water quality guidance, meant to force state agencies such as the Department of Environmental Protection to more carefully review mining permits and push companies to reduce potential pollution impacts.
The judge had been scheduled to hear legal arguments later this month on part of the case challenging that guidance, but Walton has delayed deadlines for legal briefs on that issue until spring and won't hold a hearing until June.
"Today's ruling is only half the battle," DEP Secretary Randy Huffman said in a statement on Walton's decision.
On that point, Huffman and environmental groups agree.
Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, said coalfield residents hope to continue pressing for tougher EPA actions.
"Without strong federal oversight and scrutiny of individual permits applications, we here in West Virginia will find ourselves once more in a rapid decline and a race to the bottom in the universe of protecting our streams and communities from the destruction of the coal industry," Rank said. "We will never be able to effect change from within our individual states without federal input and the voices of everyone across the country that case about our nation's waters to call and voice their support for strong EPA action on mountaintop removal mining."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.