Justices will not review Mingo Logan Coal Co. case

The U.S. Supreme Court has declined an opportunity to weigh in on the question whether the Environmental Protection Agency can veto a wetlands permit granted by the Army Corps of Engineers.

The justices released an order Monday denying the petition for certiorari in Mingo Logan Coal Co. v. EPA.

As a result of the order, the huge Spruce No. 1 coal mine in Logan County, W.Va. remains in limbo.  The U.S. Court of Appeals for the District of Columbia Circuit, which had upheld EPA’s veto authority in an April 2013 opinion, had ordered the case remanded to a federal trial court in Washington, D.C. The district judge will now consider other argument mounted by industry lawyers in their effort to get the largest mountaintop removal project in history into operation.

Should the project proceed, miles of environmentally sensitive streams and several thousand square miles of forest would be destroyed.

For background on this case, please read this post.

Supreme Court to decide whether to hear mountaintop removal case

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The U.S. Supreme Court will decide Friday whether to wade into the years-long fight over the largest proposed mountaintop removal mining project in history.

During the justices’ traditional Friday conference they will consider a petition for certiorari filed by a mining company that plans to fill miles of streams, and several square miles of streamside forests, with the dirt and rock removed in a quest for coal that would strip away more than 3,100 acres of terrain.

The permit allowing the destruction was granted by the U.S. Army Corps of Engineers in 2007, then revoked by the Environmental Protection Agency in 2011.

The legal fight focuses on whether EPA has the power to withdraw a permit granted by another agency of the executive branch after the beneficiary of that permit begins to act in reliance on it. But the real stakes of the now 15-year old battle involve the fate of one of the most fecund regions in the world.

Mountaintop removal mining, one environmental advocate says, is akin to “erasing the most biologically diverse forest on Earth.”

“It’s really hard to understand the scope and scale of it even from the ground below it,” Vivian Stockman, a spokesperson for Ohio Valley Environmental Council, one of the organizations fighting the Mingo Logan wetlands fill permit, said.  “You eliminate layers of rock that’s above the coal and dismantle the mountain. All of that goes into the streams.”

The battle that will be discussed around the justices’ conference room table Friday morning began in 1998, when Hobet Mining Co., a subsidiary of the giant Arch Coal Co., proposed to build the Spruce No. 1 coal mine in Logan County, W.Va.

Environmentalists launched the fight against the project in 1999, convincing a federal court to overturn a permit needed by the mining company before it could fill streams and cover land with the debris that conceals coal seams. That decision was, for the most part, upheld by a federal appeals court and, after several years of wrangling over the extent of environmental impact review required before the permit could be granted, the Corps again granted the permit in January 2007.

Along the way the mining project was transferred from Hobet to Wharncliffe-W.Va.-based Mingo Logan Coal Co.

The Corps relied on a section of the Clean Water Act that establishes a system for conserving wetlands when it gave Mingo the permit needed to proceed with the Spruce No. 1 mine. Thirty-seven dump sites in Appalachian streams were approved by the Corps.

EPA withdrew the permit in January 2011. According to the agency, the approximately 110 million cubic yards of mine waste pollution approved by the Corps-issued permit would destroy more than seven miles of waterway, including about 6.6 miles of two entire streams that are among the most pristine in West Virginia, and cover about 3.5 square miles of forest land.

The affected streams, EPA said in a document explaining its decision, “have some of the greatest aquatic animal diversity of any area in North America, including one of the richest concentrations of salamander fauna in the world, as well as many endemic and rare species of mayflies, stoneflies and caddisflies.”

The riparian forest land is equally vital for wildlife. EPA explained that “[w]ith their adjacent riparian areas, these streams provide important habitat for 84 taxa of macroinvertebrates, up to 46 species of amphibians and reptiles, [four] species of crayfish, and [five] species of fish, as well as birds, bats, and other mammals.”

EPA also pointed out that rivers into which the affected streams flow would experience significant selenium pollution and increased salinity as a result of the pollution from the Spruce No. 1 mine.

Mingo Logan prevailed in a federal trial court after filing a lawsuit challenging EPA’s action, but the U.S. Court of Appeals for the District of Columbia Circuit reversed that victory last spring, rejecting an argument that EPA could not pull the permit after it was issued.

“Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’ specification but instead expressly empowers him to prohibit, restrict or withdraw the specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will result,” wrote Judge Karen LeCraft Henderson for a unanimous panel.

The statutory language at the core of the fight is found in section 1344(c) of the Clean Water Act:

“The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”

The U.S. Department of Justice, in a response to Mingo’s petition for certiorari, argues that this language represents a compromise between the House of Representatives’ desire that the Corps have the final say on wetlands fill permits and the Senate’s intent that EPA have it.

The environmental community agrees with that take on the controversy.

“The industry is trying to blow this issue out of proportion,” Emma Cheuse, an attorney with Earthjustice who has represented environmental organizations opposed to the Spruce No. 1 mine, said. “EPA has had the authority under the CWA to serve as a backstop to protect clean water for decades.”

An EPA website indicates that the agency has invoked its section 1344(c) power only 13 times and Cheuse explained that, while the agency’s decision to reject the section 404 permit granted to Mingo is the first time it has exercised its veto power in the context of a dispute over mining-related water pollution, the agency has a solid factual record to justify its action.

“EPA made a decision here based on robust, strong, and scientific grounds that it provided,” she said.

But Lyle Denniston, a reporter at the respected SCOTUS blog who has covered the Supreme Court for more than half a century, said that he is not sure the question is as clear as the statutory language might lead a casual observer to believe.

“EPA has argued that it seldom has used this power, and Mingo argues that it has actually been used only once — in this case,” he said. “So the court may wonder whether the outcome has any implication for other factual situations.”

“I think that is quite a close question, not answered by the text — or at least debatable enough under the textual language that the court might very well want to clarify it — but, once again, only if it thinks the issue has wider implications,” he continued.

That is the position taken by Mingo and its supporters, who include 27 states and several business advocacy organizations.

Paul Clement, who served as the government’s chief advocate in the supreme court under former President George W. Bush, argued in the company’s petition for certiorari that Congress could not have intended EPA to have the power to revoke permission to fill wetlands, even a whole stream, after companies have invested large sums of money in projects that depend on elimination of a wetland.

“By holding that EPA may withdraw site specifications years after the Corps has issued a permit, the decision below destroys regulatory certainty and overturns the settled expectations of the regulated community,” he wrote.

The Obama administration disputes that analysis, telling the justices in a response to Mingo’s request for review of the D.C. Circuit decision that Congress’ understanding that EPA would interpret section 1344(c), and the agency’s long-standing record of reading the statute as a grant of authority to reject a permit after it is issued by the Corps, is entitled to deference from the Supreme Court.

 “An express delegation of rulemaking authority is the clearest sign of Congress’s intent that an agency will speak with the force of law when it interprets a statute. As relevant here, the CWA contains precisely such a delegation. . . One of [EPA’s] statutorily authorized functions is to withdraw specifications of disposal sites. The EPA therefore spoke with the force of law when it construed Section 1344(c) in its 1979 regulations, and when it subsequently published three post-permit final determinations after notice and comment and a public hearing (in 1981, in 1992, and in this case). And while the EPA has very rarely exercised its power to withdraw a specification after a permit has been issued, the agency has adhered since 1979 to the view that it possesses statutory authority to do so.”

The government’s argument on this point is based on a doctrine of administrative law that requires judges to defer to an agency’s interpretation of statutory language when there is any ambiguity present in it.

Should the Supreme Court agree to hear the case, it will likely consider it during the term that starts next October.

The case is Mingo Logan Coal Co. v. Environmental Protection Agency, No. 13-599.

Image courtesy Vivian Stockman, Ohio Valley Environmental Coalition.

Bush-era mining rule struck down

A federal district judge has ruled that the administration of former President George W. Bush violated the Endangered Species Act when it weakened a mining regulation in a way that allowed streams and rivers in Appalachia to be filled with debris from mountaintop removal.

The court held Thursday that the Office of Surface Mining Reclamation and Enforcement, an agency of the U.S. Department of Interior, should have consulted with the U.S. Fish & Wildlife Service about the impact of the change to the regulation on endangered and threatened wildlife in Appalachia.

“Faced with clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality, and all living biota, OSM’s determination that the revisions to the stream protection rule encompassed by the 2008 [r][ule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion,” Judge Barbara Rothstein wrote.

Issued under the authority of the Surface Mining Control and Reclamation Act, the principal federal law affecting coal mining, the 2008 regulation replaced a prior regulation that had been in effect since 1983. Under the earlier Stream Buffer Zone Rule, mining companies could not obtain a waiver allowing the deposit of debris into streams or rivers unless the discharge would “not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream.”

The 2008 regulation eliminated that constraint on OSM’s discretion to grant a waiver, substituting for it language that allowed much more latitude to lower the water quality of Appalachian streams and rivers: “The permit application must demonstrate, and the regulatory authority must find, that avoiding disturbance of the stream is either not reasonably possible or not necessary to meet the fish and wildlife and hydrologic balance protection provisions of the regulatory program.”

The Bush-era regulation also exempted certain mining activities from water pollution limitations altogether, including the diversion of streams and the construction of excess spoil fills, if OSM concluded that “avoiding disturbance of the stream is not reasonably possible.”

The term “spoil fill” refers to the mound of soil, rock, and other debris removed from the mining area in order to open up access to the material sought.

The goal of mountaintop removal mining is the removal of coal.

Judge Rothstein rejected an argument by the National Mining Association that OSM could rely on a 1996 biological opinion by FWS that determined the agency’s regulations  would not be likely to harm species listed under the ESA.

She also refused to remand the 2008 regulation to OSM, which would have enabled it to remain in effect while consultation with FWS occurred, holding instead that the regulation must be vacated. That decision means that OSM will have to start its rulemaking process over again if the Obama administration determines that it wants to loosen the constraints imposed by the 1983 regulation.

The 2008 OSM regulation struck down Thursday was a “midnight rule,” one of many regulations proposed and finalized by the Bush administration during the weeks between President Barack Obama’s election and his inauguration on Jan. 20, 2009. It went into effect just eight days before Obama took office.

A study of the environmental impacts of mountaintop removal mining completed by the U.S. Environmental Protection Agency in 2005 concluded that the practice buried or damaged almost 2,000 miles of Appalachian streams and rivers since the mid-1970s.

The case is National Parks Conservation Association v. Jewell, No. 09-00115.

Supreme Court asked to weigh in on EPA’s power to veto wetlands fill permits

A coal mining company fighting a decision by the U.S. Environmental Protection Agency to effectively veto a permit allowing disposal of mining waste in the streams of Appalachia has asked the Supreme Court to review the case.

The petition for certiorari in Mingo Logan Coal Co. v. United States Environmental Protection Agency was filed Nov. 13.

“Granting EPA this unprecedented power will chill private investment in critical sectors of the economy, where some $220 billion each year is contingent upon section 404 permits,” the petition argues.

The issue is of high importance to advocates working to prevent mountaintop removal mining.

Scientific studies show that the practice, which involves extensive deforestation in a region that contains a high degree of terrestrial biodiversity, also causes damage to aquatic ecosystems that is practically irreparable.

Human health impacts, including increased risk of cancer and heart, lung, and kidney disease, have been documented in areas where mountaintop removal mining occurs. A relatively higher frequency of birth defects in areas impacted by the practice has also been confirmed.

In 2007 the U.S. Army Corps of Engineers issued Mingo a permit to fill waterways with overburden from its Spruce Mine No. 1 in Logan County, W. Va.

In 2011 EPA demanded changes to the permit that were extensive enough to amount to an outright rejection of it.

The U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by Judge Karen L. Henderson – an appointee of former President George H.W. Bush – unanimously upheld EPA’s action. The other two judges that signed on to the panel’s opinion were Thomas B. Griffith and Brett Kavanagh, both appointed by George W. Bush.

The focus of the legal dispute is section 404(c) of the Clean Water Act. That provision of the CWA appears to give EPA authority to revoke a permit to fill a stream with mining debris (or any wetland with any other sort of fill material), even if the polluting activity has already commenced:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

Referring to this section of the CWA, upon which EPA relied in forcing changes to the Mingo permit, the D.C. Circuit wrote:

Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’ specification but instead expressly empowers him to prohibit, restrict, or withdraw the specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will result. . . [T]he Congress made plain its intent to grant the the Administrator authority to  prohibit/deny/restrict/withdraw a specification at any time.

Mingo Logan Coal Co. is represented by former  U.S. solicitor general Paul D. Clement in its effort to obtain Supreme Court review of the D.C. Circuit decision.

Environmental groups seek intervention in case challenging mountaintop mining rules

A group of environmental organizations based in Appalachia has asked a federal judge to permit them to intervene in a lawsuit that challenges new Environmental Protection Agency regulations aimed at strengthening oversight of mountaintop removal mining.

Mountaintop removal mining involves the use of explosives to remove huge quantities of rock that bury coal seams. The procedure results in the literal destruction of mountains and the filling of streams and river valleys with rock, sediment, and toxic chemicals.

The Obama administration, in a change from the approach of its predecessor, has given EPA a veto power over so-called section 404 permits issued by the U.S. Army Corps of Engineers and strengthen cooperation between the two agencies and the Department of Interior.

Section 404 refers to the provision of the federal Clean Water Act that established protection of wetlands from filling. Rivers and streams are included within the coverage of that statutory section.

The administration of former President George W. Bush, in a decision made eight days before his presidency ended, issued a regulation that gave the coal industry wide latitude to blast off the tops of mountains and fill Appalachian streams and hollows with the resulting debris.

The new rules have slowed down permit decisions and, in some cases, caused some permit applications to be denied. They have particularly impacted planned mining operations that would result in “valley fills,” which is a nickname for operations that result in the deposit of debris in the watersheds of the region’s rivers.

The mining industry opposes the new regulations and, in July, filed a lawsuit attacking them in U.S. District Court in Washington, D.C.

The lawsuit claims that the new regulations will effectively ban mountaintop removal mining in the major coal states of the east, including Kentucky and West Virginia, and that EPA did not follow the procedures established by federal statute when it imposed the new regulations.

The environmental advocacy organizations, which include the Sierra Club and six local organizations, argue in their motion that a ruling in favor of the mining industry would cause serious harm to their members and the environment because the government might them grant permits of “dubious legality.”

Two other lawsuits contesting EPA’s new mountaintop mining regulations have also been filed. One was launched by the state of West Virginia earlier this month, while the second is being pursued by a group of Kentucky coal companies.

Bush Seeks to Legalize Mountaintop Stripping

The Bush Adminisration’s Environmental Protection Agency has approved a proposed rule that would allow the practice of stripping off mountain tops to find coal, and then dumping the debris into streams, to resume, according to a report in the McClatchy Newspapers.

A 1983 regulation prohibits the dumping of such mining debris, which often results from a common mining practice in the coal regions of Appalachia. The government in recent years has declined to enforce this rule.

Government figures show that about 535 miles of streams were buried or diverted between 2001 and 2005, about half of them in Appalachia.

The Department of Interior intends to finalize the rule this month, according to a report in the McLatchy Newspapers, and it will go into effect before President-elect Barack Obama takes office.

The Obama-Biden transition office has not commented on its plans for seeking the reversal of this and other recent changes to federal regulations.