Tuesday, March 27, 2012

EPA Loses at Roshambo

Over a year ago, January 13th, 2011, the New York Times reported on the EPA revoking a permit for a coal mining project in West Virginia. It was a project over 10 years in the making. The Times does a fair job of expressing the views of both sides. The EPA claims that the project would pollute too much and that Arch Coal, the mining company, owner Mingo Logan, did not work with the EPA to design a mining plan that would meet federal law. Arch Coal claims the EPA is overextending its authority by revoking a permit that was approved by the government.

The Times also cannot resist stating that the project was given the permit in 2007, under the Bush administration. Blame Bush.

On Friday, March 23rd, 2012, the New York Times reported that the EPA's decision to revoke the permit was overturned. The story should have been about how the EPA construed the Clean Water Act to give themselves authority it did not have. This was stated, but the Times could not resist restating all of the bad environmental effects that the EPA claimed would happen. Does this mean that would justify the EPA breaking the law?

Also, once again, the Times could not resist stating that the project was given the permit in 2007, under the Bush administration. Blame Bush, again.

The real issue is that the EPA took what seems to be an ambiguously worded statement in the Clean Water Act, section 404(c), and used it as justification to revoke a permit that is the responsibility of the Army Corps of Engineers. You can read this section on the EPA's website.

The court told the EPA that the ambiguous wording of a sentence can be cleared up if read in context of the whole section of 404. The court goes on to explain how the EPA's interpretation would be at odds with 404(p) and 404(q). 404(c) allows the EPA to work with the Corps and reject sites during the approval process, not after.

Upon reading the decision of the U.S. District Court to overturn the EPA, you will find some fun little facts. Remember how Arch Coal did not work with the EPA? Here are a few tidbits from the section "A. Factual Background" :
In the letter commenting on the draft EIS, EPA concluded that it “remains committed to working with the Corps, the state, and the applicant to identify and develop an environmentally acceptable project” and “would encourage additional discussions in an effort to clarify and resolve the issues raised in this letter.”
In December 2005, the West Virginia Department of Environmental Protection granted state certification for the individual permit based on its determination that the project would not violate state water quality standards or anti-degradation regulations.3 AR 20924–28.
However, the letter also noted in several places that the agency was encouraged by the progress that Mingo Logan had made to date, and it voiced optimism that EPA could work with the Corps, federal and state agencies, and Mingo Logan to address its concerns and develop appropriate mitigation plans, as well as a Little Coal River cumulative impact assessment and restoration plan.
The Corps released the final EIS in September 2006, and EPA again submitted comments by letter. AR 8330–34, 34962–35342. The comment letter again included concerns about potential adverse impacts to the Little Coal watershed and gaps in the mitigation plan, but also acknowledged Mingo Logan’s progress in reducing impacts and EPA’s willingness to work with the responsible agencies to resolve its concerns prior to a section 404 permit decision. AR 8331– 32.
That sounds a bit different from the idea that Arch Coal was not working with the EPA.

There is also some amusing courtroom banter in the document:
COUNSEL FOR EPA: EPA 404(c) authority authorizes it to withdraw specifications whenever it makes its determination. . . . I grant you that the effect of that, the practical effect of that, would be that the company would no longer be able to operate under the permit. . . .

THE COURT: They have a permit that says this permit is final until it’s suspended or revoked. There’s a missing step here. Why can’t they walk out tomorrow and dump fill in those sites? You say, we’ve withdrawn the specification, but the permit exists.

Is the Corps required now to revoke or modify the permit in light of your determination?

COUNSEL FOR EPA: I don’t think they need to take that extra step. EPA’s withdrawal of that specified site has been final. It has been made. . . .

THE COURT: So everybody with a permit has to on a daily basis compare their permit to your list of specified sites? They can’t do what they’ve been permitted to do by the United States? . . . Where does it say in the statute that they can’t dump tomorrow?
COUNSEL FOR EPA: I don’t see any ambiguity in the statute with respect to the authority of the EPA to withdraw the specification after the permit is issued. . . .

THE COURT: . . . But . . . what are they supposed to do tomorrow? And if your exercise of that power essentially undermined the finality of the Corps’ exercise of their power in 404(a), wouldn’t it have been essential for Congress to say that?


There’s this huge gap. I mean, you looked at me very blankly when I said what is Mingo Logan supposed to do tomorrow.
Sometimes it is best not to just read a newspaper or a blogger to truly understand a decision. There is probably a slanted view. The decision is available online and you should read page 31.

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