Supreme Court Rejects Coal Industry Attack on the EPA’s Power to Protect Clean Water

Washington, D.C. —

Today the Supreme Court denied the coal mining industry’s request to hear a case against the Environmental Protection Agency for vetoing part of a permit for one of the largest and most harmful mountaintop removal coal mines in West Virginia’s history, the Spruce No. 1 mine. By declining to take the case the Supreme Court refused to reverse the lower court’s ruling that EPA has full authority to protect clean water whenever necessary to prevent unacceptable environmental harm. Background information and relevant documents are provided at the end of this release.

Said Trip Van Noppen, President of Earthjustice:
“The Spruce No. 1 mine is one of the largest and most destructive mountaintop removal mines ever proposed in Appalachia. EPA’s decision to veto the dumping of waste from this mine was a decision to prevent the most extreme impacts of the most radical type of strip mining – the worst of the worst. The Clean Water Act, enacted with wide bipartisan and public support, gave EPA broad authority to step in and stop this type of wholesale destruction and pollution of U.S. waters. The Supreme Court refusal to hear industry’s baseless case confirms that the EPA has the clear legal authority to prevent the dumping of waste whenever it would cause unacceptable harm to communities and the environment.”

Said Jim Hecker, Environmental Enforcement Director at Public Justice and co-counsel in the 1998 case that initially blocked the Spruce mine: “The coal industry has falsely painted the Spruce mine veto as an example of EPA overreach and a ‘war on coal,’ when in fact EPA’s authority to veto this permit is obvious from the face of the statute and EPA’s decision is based on clear scientific evidence of serious environmental harm from mining.”

Said Vivian Stockman, project coordinator, Ohio Valley Environmental Coalition:
“This is a very gratifying outcome for water drinkers everywhere. The Court agrees that Congress gave EPA the authority to protect our waters from devastating harm, harm the proposed massive Spruce mountaintop removal mine would wreak if its permit was not vetoed. By protecting clean water, EPA is ultimately protecting human health, and as recent events have underscored, here in central West Virginia we cannot depend on the coal industry, nor state government to protect human health by protecting clean water. We need EPA to be able to keep a check on things.”

Said Cindy Rank, Mining Committee Chair of West Virginia Highlands Conservancy:
“The need to prevent the kind of devastating harm to waters that would be caused by the Spruce mountaintop removal mine is exactly the reason Congress gave EPA the critical authority and responsibility to serve as a backstop of protection for clean water in America.”

Said Vernon Haltom, executive director of Coal River Mountain Watch:
“It’s absurd that we have to fight this hard to protect one site from mountaintop removal when there are so many threatening the health of mountain communities. We have to rely on the EPA to do the job clearly entrusted to them, because the West Virginia Dept. of Environmental Protection long ago abdicated their mission. To struggle so long for one site is all the more reason that we need to pass the Appalachian Community Health Emergency (ACHE) Act, HR 526.”

BACKGROUND INFORMATION:

Spruce No. 1 Mine: In October 1999, the Spruce No. 1 Mine became the subject of the first significant federal court decision on mountaintop removal mining, won by individual community members and the West Virginia Highlands Conservancy (represented by Appalachian Mountain Advocates and Public Justice). That case — in which the late Judge Charles Haden found that the Army Corps of Engineers’ permit for the mine was unlawful — initiated years of controversy and litigation over this proposed mine. In the meantime, the science accumulated showing how devastating this type of mining is for local waters and communities.

In January 2011, the EPA decided to veto the Spruce No. 1 Mine permit based on robust science showing the irreparable harm that would occur if the mining company were allowed to permanently bury and pollute natural headwater streams with mining waste. The 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.

In this instance, EPA decided to veto the Spruce No. 1 mine permit after substantial new science had come to light, after consultation with the Corps, and after public notice and a hearing. EPA considered more than 50,000 written comments before issuing the veto. The vast majority (70%) supported EPA’s veto. EPA based its decision in part on 100 scientific studies and data sources released after the permit was initially issued, including studies showing dramatic, irreversible harm to waters and revealing that industry-designed mitigation measures have repeatedly failed to protect waters. EPA applied its veto only to those parts of the permit that had been on hold for decades due to the longstanding court case in West Virginia.

Lower court decisions: In 2012, the D.C. district court ruled that EPA lacked authority to veto the permit after the Corps had issued it, without addressing the scientific merits of EPA’s decision. In 2013, the D.C. Circuit (in an opinion by Judges Henderson, Griffith, and Kavanaugh) unanimously reversed the district court’s ruling and upheld EPA’s authority to veto whenever there is unacceptable harm, including after a permit has been issued. The full D.C. Circuit then denied the coal company’s petition for en banc review.

Today’s action: Today’s denial of certiorari reaffirms what the D.C. Circuit decided — that EPA has authority to veto a harmful permit after it is issued. The case now goes back to the district court to review the scientific merits of EPA’s veto decision in this specific instance.

History of EPA veto authority: Out of the thousands of permits the Army Corps has issued to allow filling of U.S. waters during the last 41 years, including hundreds of permits for large-scale coal strip mines, this is only the 13th time EPA has ever exercised its authority under the Clean Water Act (33 U.S.C. § 1344(c)) to prohibit, deny, or restrict (including to veto or withdraw) authorization to discharge dredged or fill material into U.S. waters. It is also the first such determination ever to protect U.S. waters from mining waste. EPA has exercised its veto authority with care, acting only in circumstances where the harm is truly extreme and unacceptable and where EPA action was necessary to prevent such harm.

The law: In 1979, EPA issued the regulations that govern the use of its veto authority and recognized that its Clean Water Act authority allows EPA to act whenever necessary to prevent unacceptable harm. The U.S. Army Corps of Engineers agrees that EPA had the full authority to veto the Spruce permit.

Specifically: the Clean Water Act plainly authorizes EPA to “prohibit,” “deny[,] or restrict” “the specification (including withdrawal of specification)” for use of any U.S. waters as disposal sites for fill or dredged material, and to do so “whenever” the agency determines that this “will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C. § 1344(c). Although industry has argued that “whenever” does not allow EPA to act after the U.S. Army Corps of Engineers has issued a permit which contains such specifications, the law sets no such restriction on EPA’s authority. Instead, the law makes the Corps’ permitting authority “subject to [EPA’s authority under 404(c)]” at all times. 33 U.S.C. § 1344(b).

Pebble Mine proposed in Alaska: Using the same Clean Water Act authority, EPA last month initiated a process to prohibit dumping of waste from the proposed Pebble Mine, which would be the largest open pit in North America, into the headwater streams of Bristol Bay, Alaska, home to the world’s most productive sockeye salmon fishery. The appellate court ruling in the Spruce Mine case, which the Supreme Court today allowed to stand, clarifies that EPA may exercise this authority “whenever” the agency determines that the dumping would cause unacceptable adverse effects.

RELEVANT DOCUMENTS:

1. Petition for certiorari filed by Mingo Logan: http://earthjustice.org/documents/legal-document/pdf/court-document-peti…
2. Solicitor General’s brief in opposition to cert., on behalf of EPA: http://earthjustice.org/documents/legal-document/pdf/court-document-soli…
3. Read the D.C. Circuit opinion, issued by Judges Henderson, Griffith, and Kavanaugh: http://www.wvgazette.com/mediafiles/document/2013/04/23/SpruceMineVetoAp…
4. More information about EPA’s Veto Determination for the Spruce No.1 Mine: http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/spruce.cfm
5. List of 13 EPA Determinations Under 404(c) of the Clean Water Act since 1979: http://water.epa.gov/lawsregs/guidance/wetlands/404c.cfm
6. Amicus Brief filed by Local Community Groups in the D.C. Circuit in support of EPA: http://earthjustice.org/sites/default/files/Spruce%20Appeal%20Amicus%20B…
7. EPA’s Press Release on the Initiation of § 404(c) Process for the potential Pebble Mine in the Bristol Bay Watershed in Alaska: http://yosemite.epa.gov/opa/admpress.nsf/names/r10_2014-2-28_bristol_bay