Right on the heels of yesterday's good news court ruling restricting mining around the Grand Canyon National Park comes another today which upholds EPA's authority regarding mountaintop removal. This case is a little bit complicated, but it's definitely good news.
Mountaintop removal mine in Pike County, Kentucky
This case concerns something called Spruce Mine #1 in Logan County West Virginia. Because the litigation centered on regulatory and permitting actions taken by the EPA, the jurisdiction fell to the US District Court in the District of Columbia. This particular mining project has been winding its way through the courts for nearly a decade, with the decisions at hand having more at stake than just whether this particular company, Arch Mining, can wipe this particular mountain off the face of the earth.
Judge Amy Berman Jackson, an Obama appointee, issued a 50-page ruling affirming the EPA's authority to revoke Clean Water Act permits:
U.S. District Judge Amy Berman Jackson concluded that the agency’s veto of a Clean Water Act permit for Arch Coal’s Spruce No. 1 Mine in Logan County was “reasonable, supported by the record, and based on considerations within EPA’s purview.” In a 50-page opinion, the judge ruled with EPA on the merits of the agency’s January 2011 decision to use its water pollution oversight authority to rescind a permit that had been previously issued to Arch Coal by the federal Army Corps of Engineers.
This was the second round of litigation about this mine. The Army Corps of Engineers had issued a permit for the mining operation in 2005. Their authority has to do with physical changes in streambeds, such as occur when you remove a mountaintop to get at the coal, filling in nearby valleys with the overburden removed. (The also permit smaller operations, such as earthmoving components of building bridges.)
At issue in the Spruce case was an Army Corps-issued permit for the Spruce No. 1 Mine, an operation environmentalist groups have been trying to stop since 1998, when it was first proposed as a 3,113-acre extension of Arch’s Dal-Tex Mine that would have buried more than 10 miles of streams.
EPA's mandate in this situation arises from the Clean Water Act, which mandates "fishable, swimmable waters." Needless to say, the runoff from mining operations can be bad news for fish. And it was from this authority that they revoked the permit for Spruce Mine #1 which the ACoE had issued.
At which point, the lawyers got busy with court filings. This ruling was the second line of attack the coal companies tried, after failing with the first. In the first round, they challenged the timing of EPA's action, retroactively revoking the permit. Ironically, the same Obama appointee ruled in Arch Coal's favor on that matter, three years ago. Her decision was overturned by the District of Columbia Court of Appeals, a panel of three judges, all Republican appointees. The Supreme Court declined to hear the case, leaving the Appeals Court decision standing.
Business groups such as the American Petroleum Institute, the National Mining Association and the Chamber of Commerce supported Arch’s appeal, as did 27 states, including West Virginia. The Supreme Court did not give a reason for rejecting the case. The rejection does not affect a separate federal lawsuit Arch has brought over different issues in the Spruce rejection.
This other lawsuit is the one just ruled on, regarding the merit of the content of EPA's actions rather than the timing. That's what this latest decision covers, with the
same DC federal judge this time ruling with the EPA, against the mining interests.
But Berman Jackson ruled that the EPA veto was not -- as coal supporters have long argued -- an “about-face” by the agency, noting that EPA “did not drastically change its position” when it vetoed the permit in 2011.
“The record demonstrates that EPA harbored consistent misgivings throughout the permit application process, and those concerns ultimately led it to exercise its authority,” the judge wrote.
There's no reason to think this, too, won't exhaust all possible appeals. Even so, this is a welcome ruling amongst activists and
EPA supporters:
“Today’s court victory is a win for all Americans who believe our children deserve clean water and healthy lives without facing the increased threats of cancer, birth defects and early mortality associated with mountaintop removal coal mining,” Emma Cheuse, an attorney with Earthjustice who represented local interest groups in the court proceedings, said in a statement.
“This is great news for people living in mountain communities,” said Bill Price, a West Virginia-based coordinator with the Sierra Club. “Once again the courts have upheld the right of the EPA to act. Hopefully the administration will now move forward and take actions that Appalachian activists have asked for.”