The 4th Circuit Court of Appeals in Richmond, VA will determine if companies discharging from industrial activities can have their state-issued permits overruled by federal courts.

The case, Ohio Valley Environmental Coalition v. Fola Coal, deals with a lawsuit by an environmental group that said discharges from Fola’s coal operations exceeded narrative water quality standards by increasing the electrical conductivity, a limit not expressed in Fola’s permit. A lower court agreed in January 2015 that Fola violated its permit even though the state regulatory authority had not adopted EPA’s conductivity guidelines issued after West Virginia authorized Fola’s permit.

Karen Bennett is representing six national trade associations as amicus curiae in the 4th Circuit.

The permit was issued approved in 2009, and the Environmental Protection Agency issued a study recommending reduced limits for conductivity the following year. The EPA has only issued only guidelines on the amount of conductivity allowable, despite environmental groups' calls for a federal limit. The court is imposing a limit ex post facto.

The case could have wide-ranging implications for multiple industries as it introduces a significant level of regulatory uncertainty into the permitting process.