On April 23, 2013, the D.C. Circuit reversed the district court in Mingo Logan Coal Co. v. EPA, stating that the agency has the power to retroactively veto and withdraw coal mining permits.
At issue was a Section 404 permit issued in 2007 by the U.S. Army Corps of Engineers (the Corps) that allowed the Spruce No. 1 Mine in West Virginia to discharge material into three nearby streams and tributaries. EPA has veto authority over those Clean Water Act (CWA) Section 404 permits issued by the Corps. (For more on this interagency interplay, see Blaine Early’s post, Court Strikes Policies of EPA and Corps of Engineers on Mining-Related Permits.)However, despite raising concerns about the Spruce Mine permit in 2006, EPA allowed it go forward without objection.
In September 2009, EPA wrote the Corps that it planned to revoke or modify the permit, based on new information, particularly related to downstream water pollution. EPA officially withdrew parts of the permit allowing discharges into two of the three streams and their tributaries in January 2011 because of significant expected environmental and health effects of the pollution.
It was the first time EPA has used the veto authority retroactively and the move prompted negative reactions from the mining industry.
The district court had issued a ruling last March that harshly criticized EPA for overstepping its legal bounds when it withdrew parts of the already-issued permit. The appellate court panel, however, read the CWA differently, stating that the Act “does indeed clearly and unambiguously give EPA the power to act post-permit.” Moreover, the CWA gives EPA the power to prohibit or withdraw any part of a Corps’s permit allowing discharges, or to prohibit or withdraw an area from being available for discharges. Further, the decision points out that there is no time limit on that authority.
Relying on rather straightforward statutory interpretation, the court held that Section 404 of the CWA imposes no temporal limit on the EPA administrator’s authority to withdraw the Corps’s specification but instead expressly empowers the administrator to prohibit, restrict, or withdraw the specification “whenever” he or she makes a determination that the statutory “unacceptable adverse effect” will result. 33 U.S.C. § 1344(c).
Mingo Logan had argued, among other things, that legislative records make it clear that Congress did not mean to allow EPA to withdraw a permit after it had already been granted. The D.C. Circuit was not persuaded by these arguments.
The case will now return to the district court for a decision on the merits. The district court will also have to decide the merits of a challenge brought under the Administrative Procedures Act by Mingo Logan to the district court’s final decision. The appellate court held that that issue was not clearly resolved in the record presented and thus, it was remanded to the district court to be addressed in the first instance.