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Appeals court upholds EPA’s mountaintop removal crackdown

By Ken Ward Jr., Staff writer

In a significant victory for the Obama administration’s coal policies, a federal appeals court on Friday upheld U.S. Environmental Protection Agency initiatives aimed at reducing water pollution from mountaintop removal mining operations.

A panel from the U.S. Circuit Court of Appeals for the District of Columbia ruled that the EPA was within its authority to set up a process to coordinate with the Army Corps of Engineers on reviews of Clean Water Act permits for mining operations.

The three-judge panel also said EPA guidance aimed at reducing conductivity pollution from large-scale surface mines was not a final agency rule and, therefore, not subject — at least at this point — to legal challenge.

“[The] EPA is pleased that the Court of Appeals agreed with our position in this case,” agency press secretary Liz Purchia said in a prepared statement. “We are committed to consistently using our authority under the Clean Water Act to protect the health and environment of Appalachian communities.”

The panel rejected decisions in 2011 and 2012 by U.S. District Judge Reggie B. Walton, who had sided with the National Mining Association, the state of West Virginia and other groups who alleged that the EPA overstepped its authority in its efforts to curb environmental damage scientists say is being caused by mountaintop removal.

“The EPA did its job when it directed its staff to finally follow the law and science, and start protecting Appalachian waters and communities from mountaintop removal mining, which is associated with higher cancer, birth defects and early death for people living nearby,” said Emma Cheuse, an attorney with Earthjustice, which represented citizen groups who sided with the EPA in the case. “The coal industry continually fights for free rein to blow up mountains and dump waste all over Appalachia, and we’re glad to see clean water and healthy communities triumph today.”

Jim Hecker, a lawyer with the citizens group Public Justice, noted that this is not the first time an appeals court has backed the EPA’s plans for tougher regulation of strip mining.

“All three of the district court decisions that the mining industry trumpeted several years ago as examples of EPA ‘overreach’ — the decisions overturning [the] EPA’s Spruce Mine veto, the enhanced coordination procedure, and the conductivity guidance document — have now been reversed and [the] EPA’s position has been upheld,” Hecker said.

Coalfield elected officials responded with statements harshly criticizing the EPA and the court ruling, and promising legislation that would try to block the EPA from more closely scrutinizing mining operations.

“Today’s decision is not the end of the debate,” said Rep. Nick J. Rahall, D-W.Va. “Congress will have something to say.”

Gov. Earl Ray Tomblin issued a statement complaining that the Obama administration’s initiatives “could create an endless regulatory loop that adversely affects the ability to issue permits.”

“We, in consultation with the other litigants, will continue to explore our legal options after additional review of the ruling,” Tomblin stated.

In mountaintop removal, mine operators blast off entire hilltops to uncover valuable, low-sulfur coal reserves. Leftover rock and dirt is dumped into nearby valleys, burying streams.

While the coal industry favors mountaintop removal’s efficiency, and local political leaders praise the jobs provided, there is growing scientific evidence that the practice is causing widespread and irreversible damage to the region’s forests, water quality and communities.

Soon after taking office in 2009, the Obama administration began actions that EPA officials said were aimed at reducing that impact. In late 2010, then-Gov. Joe Manchin launched a state Department of Environmental Protection lawsuit in an effort to oppose tougher EPA permit reviews and guidance to reduce pollution-related electrical conductivity, a crucial measure of water quality impairment.

Writing for the court, Judge Brett Kavanaugh said the administrative agencies have clear authority to come up with agreements to work together, as the EPA and the Corps did in devising “Enhanced Coordination Procedures” for reviewing mining company proposals to bury streams beneath waste rock and dirt from strip mining.

“After all, this kind of inter-agency consultation and coordination is commonplace and often desirable,” Kavanaugh wrote in an 18-page opinion. “Indeed, restricting such consultation and coordination would raise significant constitutional concerns.”

On the EPA water quality guidance, Kavanaugh wrote that the agency was not telling coal companies what to do or imposing specific standards for state regulatory agencies to enforce. The guidance provided EPA regional offices with advice on conducting permit reviews but did not contain actual water quality standards that would have been mandatory — and enforceable — and, thusly, subject to legal challenge before being implemented, the ruling said.

“To be sure, the Final Guidance may signal likely future permit denials by [the] EPA; if so, those permit denials can be challenged at that time,” Kavanaugh wrote.

“While regulated parties may feel pressure to voluntarily conform their behavior because the writing is on the wall about what will be needed to obtain a permit, there has been no order compelling the regulated entity to do anything,” Kavanaugh wrote. “States and permit applicants may ignore the Final Guidance without suffering any legal penalties or disabilities.”

Noting that part of the ruling, National Mining Association spokesman Luke Popovich said, “The court certainly made plain that guidance as used by [the] EPA has no force of law. So while [the] EPA’s guidance may be its wish, it is not their command.”

Bill Raney, president of the West Virginia Coal Association, said the experience of coal companies he’s talked to is that the EPA and state officials are treating the agency’s guidance as if it’s binding, and that permits aren’t issued if they don’t comply with it.

In the decision, Kavanaugh noted that it’s possible, in such situations, that agencies are applying guidance “as if it were binding on regulatory parties.” However, in the mining case, Kavanaugh said, industry lawyers did not prove that to be the case. “The sparse record before us does not suggest that the agency has applied the Final Guidance as if it were binding on all regulated parties,” the judge wrote.

Kavanaugh noted in the ruling that coal is “an important source . . . for the electricity that lights American houses and businesses, and powers TVs and computers in American homes.” However, the judge added, “surface coal mining also leaves its mark on the environment. Among other effects, the process changes the nature of the land where the mining takes place, causing erosion and landslides.”

Kavanaugh was appointed to the court by President George W. Bush. Joining Kavanaugh in the panel ruling were Judge Thomas Griffith, another Bush appointee, and Judge Sri Srinivasan, an Obama appointee.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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