Appeals Court Reinstates EPA “Veto” Over Corps’ Mining-Related Permit - Mingo Logan decision creates uncertainty in Clean Water Act permitting program

In a surprising reversal, on April 23, 2013, the U.S. Court of Appeals for the District of Columbia Circuit overturned a lower court order issued on March 23, 2012, in the case of Mingo Logan Coal Company v. U.S. Envtl. Prot. Agency, Civil Action No. 12-5150; 2013 U.S. App. LEXIS 8121 (D.C. Cir. April 23, 2013). In the lower court, District Judge Amy Berman Jackson ruled that the U. S. Environmental Protection Agency (“EPA”) did not have the power to retroactively “veto” a Clean Water Act § 404 “dredge and fill” permit after it was issued by the U.S. Army Corps of Engineers to Mingo Logan Coal Company for its Spruce No. 1 coal mining operation in Logan County, West Virginia. The appeals court decision reverses that ruling and reinstates EPA’s veto subject to Mingo Logan’s opportunity to pursue a challenge to the stated grounds for EPA’s decision.

In the earlier opinion, Judge Berman wrote that EPA’s claimed authority to revoke a § 404 permit that had been issued years earlier was “stunning,” and that the government’s arguments in defending such an action were “entirely disingenuous.” The lower court also found that if such an arrogation of power was upheld, this 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.” The appeals court was apparently unmoved by such concerns.

Permit History. Mingo Logan’s predecessor, Hobet Mining, Inc., applied for a § 404 permit in June 1999 to allow the placement of overburden material from the Spruce No. 1 mine into fills that would affect three small streams. EPA expressed initial concerns that the draft Environmental Impact Statement (“EIS”) issued by the Corps in 2002 did not adequately address the “significant and unavoidable” environmental impacts of the proposed mining-related fills. However, EPA expressly declined to exercise its power to “veto” the permit under § 404(c) of the Clean Water Act, which states as follows: