“We are disappointed with the decision by a three-judge panel of the U.S. District Court of the District of Columbia to reverse and remand a decision by Judge Amy Berman-Jackson, also of the D.C. Circuit, which overturned a veto of the Spruce mine permit by the U.S. EPA. The three-judge panel remanded the case back to Jackson to consider the remaining parts of the case that related to the specific facts surrounding the Spruce Mine permit.”
"Under the Appeals Court decision, a permit is no longer a license to work but has been relegated to mere permission to operate only as long as you are in EPA’s good political graces. The decision is clear evidence that Congressional action in necessary to restore the appropriate balance between the authority of the Corps of Engineers and that of EPA.
"With respect to the Spruce Mine, we believe the remaining aspects of the case that will be considered by the original District Court will again lead to a positive conclusion that the Corps of Engineers issued a valid permit and that EPA acted inappropriately, finally allowing the project to proceed as originally planned.
"However, the decision yesterday by the Appeals Court has broad-reaching implications for the entire Corps of Engineers permitting process for any activity anywhere across the country. The Appeals Court decision nullifies extensive, existing regulations established under the CWA to allow for EPA’s input before the Corps of Engineers reaches a final permit decision.
"H.R. 2018, the Clean Water Cooperative Federalism Act, co-authored by West Virginia Congressman Nick Rahall and co-sponsored by Representatives Shelly Moore Capito and David McKinley, would restore the Corps’ role in the permitting process and reinstate certainty and predictability in the federal permitting process. A companion bill was introduced by Joe Manchin in the Senate. While the House version of the bill has been passed, the Senate never fully considered the legislation. With the Appeals Court decision introducing EPA as the final arbiter in any permitting decision for any type of activity made by the Corps, we are hopeful that Congress will move quickly to restore the permitting process.
“We see yesterday’s decision as reaching far beyond the coal industry and West Virginia and potentially destabilizing the entire CWA regulatory structure. At this point, Congressional action is clearly needed to restore certainty to the process and balance the power of EPA with the permitting responsibility of the Corps.”