Today, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency’s legal authority to veto a mining permit that the U.S. Army Corps of Engineers had issued. The decision reverses the lower court’s contrary ruling, and is a major blow to the coal industry’s attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia. The case will now go back to the D.C. District Court for briefing on other claims.
The green valley to the right is the site of the proposed Spruce No. 1 mine. (Vivian Stockman of OVEC. Flyover courtesy of SouthWings.)
Read the Court’s opinion, issued by Judges Henderson, Griffith, and Kavanaugh.
Earthjustice, along with Appalachian Mountain Advocates, is representing West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Natural Resources Defense Council as amici curiae (or “friends of the court”) in support of EPA’s veto in this case. Read the amicus brief. For over a decade, Public Justice has also worked with these groups to challenge the Corps’ permit in litigation brought in the Southern District of West Virginia.
Statement from Emma Cheuse, Earthjustice attorney: “Today’s decision upholds essential protection for all Americans granted by the Clean Water Act. Communities in Appalachia can finally breathe a sigh of relief knowing that EPA always has the final say to stop devastating permits for mountaintop removal mining. Now, we just need EPA to take action to protect more communities and mountain streams before they are gone for good.”
“Thank goodness the court ruled that EPA has the ability to veto Army Corps permits,” said Joe Lovett of Appalachian Mountain Advocates. “The U.S. Army Corps of Engineers has literally overseen the destruction of Central Appalachia, and EPA oversight is needed to stop it.”
“After 15 years of litigation, this decision is effectively the death knell to the largest and most destructive mountaintop removal coal mine ever proposed,” said Jim Hecker, attorney for Public Justice.
“It’s great news that the court affirms EPA's authority to withdraw approval of a disposal site at whatever time EPA determines that unacceptable adverse effects will be caused by that site,” said Ohio Valley Environmental Coalition’s Dianne Bady. “This is a logical understanding of EPA's role to protect the environment and to protect people from environmental harm.”
“Today marks a major milestone in the fight to end the destructive practice of mountaintop removal mining,” said Mary Anne Hitt, director of Sierra Club's Beyond Coal Campaign. “The Spruce Mine was the largest mountaintop removal permit ever proposed in West Virginia history, and its valley fills would have buried more than six miles of streams. Today's ruling affirms EPA's authority to ensure the safety of our waterways and the health of our communities, including by vetoing improper permits issued by the Army Corps of Engineers.”
“Coal River Mountain Watch is pleased that the Court has upheld the EPA's authority to protect our communities,” said Vernon Haltom, executive director of Coal River Mountain Watch. “We need strong enforcement, especially in light of today's release of further confirmation of mountaintop removal's links to poor health. We urge Congress to pay attention and act on the recommendations being presented at a briefing today. In particular, we need to pass the Appalachian Community Health Emergency (ACHE) Act, HR 526, to protect our families' health from the these dangerous operations.”
“Thanks to EPA for standing strong in the midst of seemingly overwhelming pressure to give up or cave to the wishes of industry,” said Cindy Rank of the West Virginia Highlands Conservancy. “And gratitude to all the lawyers and citizens who have given so tirelessly of their time and energies these past many years to protect Pigeonroost Hollow and the fundamental goals of the Clean Water Act.”
“The court said clearly what the law says clearly—EPA can act to prevent a dumping project whenever it determines unacceptable effects on a variety of important resources will occur,” said Jon Devine, a senior attorney in the Water Program of the Natural Resources Defense Council.
Quotes From the Court's Opinion:
- “Section 404 [of the Clean Water Act] imposes no temporal limit on the Administrator [of EPA’s] authority to withdraw the Corps’s specification [or permit] but instead expressly empowers him to prohibit, restrict or withdraw the specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will result.
- “[T]he unambiguous language of subsection 404(c) manifests Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.” (Op. at 10) (emphasis added).
- “[T]he [EPA] has, in effect, the final say on the specified disposal sites....” (Op. at 12).
- The Court also explained that when EPA withdrew the specifications for streams as disposal sites, it “thereby prohibit[ed] Mingo Logan from discharging into them,” under the Clean Water Act. (Op. at 2).
The Corps’ permit would have allowed the Mingo Logan coal company to bury and destroy over six miles of pristine mountain streams under mining waste dumps (called “valley fills”) created from the destruction of over 2,000 acres of land, releasing harmful pollutants into downstream waters that sustain local communities and wildlife.
Appalachian citizen groups have been fighting to save the streams that would be destroyed by the Spruce Mine for more than a decade—as one of the largest, most harmful mountaintop removal mines ever proposed.
Liz Judge, Earthjustice, (202) 797-5237
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.