A federal appeals court has ruled that the EPA and Army Corps of Engineers acted within their statutory authority in adopting coal mining permitting policies to address water contamination.
On July 11, 2014, the Court of Appeals for the District of Columbia Circuit upheld the Environmental Protection Agency’s (EPA) policies aimed to address water contamination from coal mining by creating additional requirements for permit issuance under the Clean Water Act. The three-judge panel’s unanimous decision ruled against a challenge by West Virginia, Kentucky, coal companies, and trade groups – led by the National Mining Association – which claimed that EPA exceeded its statutory authority in adopting the policies. The decision reversed a lower court ruling that upheld the challenge.
Under federal law, surface coal mining projects that would contaminate navigable waters must obtain two Clean Water Act permits. The first permit must be obtained from the Army Corps of Engineers and also involves EPA, which can deny the use of sites selected for disposal of dredged or fill material. The second permit is issued by EPA or EPA-approved state permitting authorities and EPA may object if water quality standards or other relevant provisions are not met. Plaintiffs challenged the 2009 Enhanced Coordination Process adopted by EPA and Army Corps of Engineers and the 2011 Final Guidance document promulgated by EPA recommending states to impose more stringent conditions for permit issuance. The former requires EPA to identify permits that could violate guidelines, notify the Army Corps Engineers over a 60-day period, and discuss whether to issue permits; the latter considers studies finding that surface coal mining raises electrical conductivity of water bodies and advises state authorities to assess the potential for elevated conductivity in proposed permits.
Plaintiffs contended that the Enhanced Coordination Process violates Clean Water Act and is a legislative rule that should not have been promulgated without notice and comment under the Administrative Procedure Act. They pointed that Congress explicitly mandated EPA participation in certain stages of the permitting process and intended to restrict EPA involvement outside certain circumstances. The Court decision classified the Enhanced Coordination Process as a procedural rule that does not require notice and comment. It also noted that no statutory provision forbids EPA from consulting or coordinating with other agencies. Further, the rule does not change the substantive responsibilities of agencies involved; the ultimate decision is made by the Army Corps of Engineers though EPA makes decisions on the disposal sites.
Regarding the Final Guidance, plaintiffs argued that it violates the Surface Mining Control and Reclamation Act and Clean Water act. Plaintiffs also argued that its instruction to recommend limitations on mining projects impermissibly interjects extra-statutory roadblocks into the state permitting process. The Court found that the Final Guidance may not be the basis for enforcement action against a regulated entity, noting EPA’s statement that it is a general policy statement with no legal consequences and judicial review must wait until a permit applicant has been denied permit and seeks review of the denial.
Originally published by EnerKnol.
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