(Appeared in Daily Mail and other newspapers)
DC Federal Court Decision on Spruce is Critical First Step in Reining in Out-of-Control EPA
Decision confirms EPA has overstepped its authority and supports need for HR 2018
By Bill Raney, president
West Virginia Coal Association
There is no doubt about it, this past Friday’s decision in the U.S. District Court for the District of Columbia taking EPA to task for overstepping its authority with its veto of the Spruce Mine permit in Logan is a major victory for West Virginia’s 63,000 coal mining families and for the state as a whole. It is a critical first step in reining-in an increasingly radicalized, out-of-control agency, but it is only a first step.
In her decision, U.S. District Court for the District of Columbia Judge Amy Berman Jackson left little doubt EPA’s action is a clear abrogation of the Congressional limits set for the agency in its relationship with other agencies, “‘EPA’s position is that 404(c) grants it plenary authority to unilaterally modify or revoke a permit that has been duly issued by the Corps… This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute,” Jackson wrote.
This has been our position from the outset. The EPA has become radicalized and has attempted to gather to itself powers never envisioned by Congress and has made decisions that are destructive to our nation’s economy and to the balance of power between the Executive and Legislative branches of government. These decisions and actions have been based on nothing more than the political whims and arrogance of the EPA administrators.
For the people of Logan and Boone counties, Jackson’s decision brightens the horizon with the promise of as many as 400 mining jobs and other support jobs getting back on track.
With her decision, Judge Jackson confirmed our belief that EPA employed “magical thinking” to achieve an “illogical and impractical” conclusion to revoke the Spruce Permit. Judge Jackson accurately equated EPA’s actions to that of a “disappointed player’s threat to take his ball and go home when he didn’t get to pitch.”
Yes, the decision was certainly good news for Arch Coal and citizens of Logan County as well as the stability of the Clean Water Act (CWA) Section 404 program. It also validates the thoroughness and correctness of the Corps of Engineers’ permitting program along with the practices of the WV DEP when dealing with a professionally comprehensive mining permit application. However, EPA continues to wreak havoc with the CWA Section 402 permitting programs which are implemented and managed by the states. Just as it did with the case at issue, EPA continues to exceed the legal boundaries of its authority by hijacking NPDES permits for mining operations.
We have to now take the steps needed to make sure the brightening horizon isn’t just a false dawn. We have to bring an end, once and for all to the EPA’s regulatory war against West Virginia’s hard working coal miners.
Even as we applaud Judge Jackson’s decision we call on the U.S. Senate to quickly pass HR 2018 , the “Clean Water Cooperative Federalism Act”(co-sponsored by Congressman Rahall and passed by the House in July 2011) to return appropriate balance on EPA’s relationship with other federal agencies.”
Upon reading the opinion several times it is readily apparent that Judge Jackson had given deep thought to the issue at hand. It is also clear in her decision that Judge Jackson shares our concerns about the policies being pursued by EPA.
“First and foremost, EPA’s interpretation fails because it is illogical and impractical. EPA claims that it is not revoking a permit – something it does not have the authority to do – because it is only withdrawing a specification,” Judge Jackson wrote. “Yet EPA simultaneously insists that its withdrawal of the specification effectively nullifies the permit. To explain how this would be accomplished in the absence of any statutory provision or even any regulation that details the effect that EPA’s belated action would have on an existing permit, EPA resorts to magical thinking. It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!
“Not only is this non-revocation revocation logistically complicated, but the possibility that it could happen would leave permittees in the untenable position of being unable to rely upon the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.”
That this observation comes from an Obama-appointed federal judge is very telling.
Clearly, there is concern even in D.C. that EPA is an increasingly out-of-control agency single-handedly jeopardizing tens of thousands of jobs across the country and thousands of jobs right here in West Virginia.
Equally clear, H.R. 2018 is desperately needed to force EPA to respect the boundaries of regulatory authority between the states and the federal government, as intended by Congress in the CWA. We hope the decision rendered on Friday by Judge Jackson will convince the U.S. Senate that action on H.R. 2018 is urgently needed.
ADDITIONAL COMMENTS ON SPRUCE DECISION
"EPA’s claim that the statute contemplates that a permit is never really final is not easily squared with Congress’s clear desire to limit duplication and delay so that commerce would not be disrupted more than necessary. What would be the point of insisting upon expedition in granting permits if a permit isn’t worth the paper it’s printed on and commerce could be interrupted at any time?" U.S. District Court Judge Amy Berman Jackson
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"I applaud our courts for stating clearly and unequivocally that a bureaucratic agency like the EPA cannot run the lives of hardworking Americans. I always knew that the EPA's decision to retroactively veto a coal mining permit for the Spruce No. 1 Mine in Logan County was fundamentally wrong and an unprecedented act by the federal government,” Sen. Joe Manchin, D-W.Va.
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"Today the court clearly ruled that the EPA overstepped its authority," Sen. Jay Rockefeller, D-W.Va.
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"This decision underscores what I've been saying for the past three years: this Administration has been abusing their regulatory authority in order to advance an anti-coal agenda. The fact that the decision states the EPA's veto of the Spruce Mine permit was 'unprecedented' and it acted in a manner that was 'arbitrary, capricious, and not in accordance with law...' could not be a clearer sign that West Virginians have been unnecessarily subjected to an overreach of federal power,” Rep. Shelley Moore Capito, R-W.Va.
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"Remember, this was the very first time in the EPA's 40-year history that they had revoked a water permit that had already been approved. That's how radical a move this was by the Obama Administration's EPA. Clearly, Judge Jackson's decision gives everyone involved in the West Virginia coal industry hope," Rep. David McKinley, R-W.Va.
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“Some time ago, it had long been my belief that the EPA could be a positive force in the permitting process for surface coal mining in West Virginia. After years of battles in courtrooms that left coal miners and coal communities in a long, tenuous limbo, this EPA had an opportunity to help achieve a center point that would provide for both energy development and environmental preservation. But it has utterly failed.
“It is not just politicians and not just coal miners and coal executives, now it is the courts who are saying that in its treatment of coal mining in the Appalachian States, the EPA has twisted the law, circumvented the Congress, and trampled on the right of the people to know what their government is doing,” Rep. Nick Rahall, D-W.Va.
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“This is a huge victory for West Virginia and our coal miners. I want to thank Judge Jackson for recognizing that the EPA and the federal government were completely wrong in revoking this permit. I now call upon Lisa Jackson and the EPA to admit that they have gone too far -- enough is enough. Issue our permits so that we can put our people back to work and provide the resources that will power America,“ Gov. Earl Ray Tomblin.
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