Today Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia upheld the Environmental Protection Agency’s veto of a permit for one of the largest and most extreme mountaintop removal coal mines ever proposed in Appalachia, the Spruce No. 1 Mine. The court found no merit in the coal industry’s case, and found that EPA’s decision to veto the Clean Water Act permit for this mine was reasonable and fully supported by the scientific record.
Background information and relevant documents are provided at the end of this release.
Statement from Emma Cheuse, Earthjustice counsel who argued on behalf of several Appalachian groups in defense of the EPA’s veto:
“Today’s court victory is a win for all Americans who believe our children deserve clean water and healthy lives without facing the increased threats of cancer, birth defects and early mortality associated with mountaintop removal coal mining.
Now that a court has affirmed EPA’s decision to prevent the unacceptable devastation this practice causes in this important instance, we need EPA to do its job across the board to protect Appalachian communities before the coal industry destroys more waterways, communities and unique natural areas for good.”
Statement from Ben Luckett, Appalachian Mountain Advocates who also represented the coalition of Appalachian community groups as amici curiae in support of EPA:
“The court rightly recognized the robust scientific foundation for EPA’s decision to prevent the extreme environmental harm associated with the Spruce mine’s proposed valley fills. We expect that EPA going forward will faithfully apply that science and take proactive steps to avert the damage caused by large scale surface coal mining that it so clearly identified in its veto determination.”
Statement from 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,' and this decision shows that EPA's decision is based on clear scientific evidence of serious environmental harm from mining."
Statement from Debbie Jarrell, Coal River Mountain Watch co-director:
"It's about time that the EPA is able to do their jobs, but protecting two streams out of the hundreds of active and pending permits is a far cry from ending mountaintop removal. The EPA needs to go much further to protect our communities' health and water, and not get sued for doing their jobs."
Statement from Bill Price of the Sierra Club:
"This is great news for people living in mountain communities. Once again the courts have upheld the right of the EPA to act. Hopefully the Administration will now move forward and take actions that Appalachian activists have asked for."
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. The Supreme Court also denied certiorari, reaffirming what the D.C. Circuit decided—that EPA has authority to veto a harmful permit after it is issued.
Today’s action. The case went back to the District Court for review of the scientific merits of EPA’s veto decision in this specific instance. The court today upheld EPA’s veto, ruling that it was reasonable, supported by evidence, and well within EPA’s scope of responsibility to protect waters, and upheld the EPA action.
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).
- Read Judge Amy Berman-Jackson’s Opinion upholding EPA’s veto of the Spruce No. 1 Permit
- Read the D.C. Circuit opinion, issued by Judges Henderson, Griffith, and Kavanaugh: http://www.wvgazette.com/mediafiles/document/2013/04/23/SpruceMineVetoAppealRuling_I130423110351.pdf
- More information about EPA’s Veto Determination for the Spruce No.1 Mine: http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/spruce.cfm
- List of 13 EPA Determinations Under 404(c) of the Clean Water Act since 1979: http://water.epa.gov/lawsregs/guidance/wetlands/404c.cfm
- 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%20Brief.pdf
- Read the Amicus Brief filed by Local Community Groups in the U.S. District Court for D.C. in support of EPA’s decision to veto the Spruce No. 1 Permit: http://earthjustice.org/documents/legal-document/court-document-amicus-b...
Liz Judge, Earthjustice, (415) 217-2007