EPA, the Courts Are Watching You

By Johanna R. Thibault, Esq.
April 9, 2012

The Environmental Protection Agency (EPA) is getting bamboozled by the courts this year. Within a week of the Supreme Court making its decision against the EPA in Sacket, Judge Amy Berman Jackson delivered an additional smack to the EPA in her decision in Mingo Logan Coal Company, Inc. v. EPA. Although this was only at the federal district court level, the decision does not lack significance, especially to the EPA.

Not terribly dissimilar from the type of over-reaching EPA was doing in Sacket, Judge Jackson also felt the EPA was a little too high-handed with its application of authority used to withdraw a wetlands fill permit issued under Clean Water Act Sec. 404. Not that avid environmental protectors aren't in support of preventing gross pollution to our waterways, but when the agencies, such as the EPA did here, arbitrarily decide that a permit should be invalidated, it undermines the very programs put in place to protect those resources.

Here is the cliff notes version of what happened in the Mingo Logan case.

Mingo Logan received a permit from the Army Corps of Engineers to allow dredge and fill materials into adjacent waterways from the Spruce No. 1 coal mine on January 22, 2007. This was after a grueling and arduous permit authorization process that was initiated in 1999. The seven years witnessed a very detailed history between the Army Corps of Engineers and Mingo Logan including initial authorization under the Nationwide Permit Program and subsequent withdrawal of that approval; the submittal of an Individual Permit under Section 404(a) of the Clean Water Act; and the publication and environmental review process required under the National Enviromental Policy Act for an Environmental Impact Statement.

This lengthy process included review by not only the public, but also input from several administrative agencies, not least of whom the EPA. Although somewhat hesitant throughout the process, the EPA did provide its final "ok" with the express consideration that it "intended to 'work together' with the Army Corps of Engineers to address any concerns." The reason this is important is because the Clean Water Act requires that the Corps receive a thumbs up from the EPA prior to issuing any dredge or fill permits. The Corps issued the permit to Mingo Logan after receiving an email from the EPA stating, "we have no intention of taking our Spruce Mine concerns any further from a Section 404 standpoint."

The EPA was taken to court because just two years after providing this approval, it requested that the Corps suspend, modify or revoke the permit. When the Corps rejected EPA's request, the EPA formally withdrew its "specifications" of the dredge and fill locations - something, EPA argues, nullifies the 404 permit.

How did the Judge respond to this plenary act of authority? She made the alarm in her response crystal clear:

EPA’s position is that section 404(c) grants it plenary authority to unilaterally modify orrevoke a permit that has been duly issued by the Corps – the only permitting agency identified inthe statute – and to do so at any time. This is a stunning power for an agency to arrogate to itselfwhen there is absolutely no mention of it in the statute. It is not conferred by section 404(c), andit [sic] contrary to the language, structure, and legislative history of section 404 as a whole.

The Judge's decision is a complicated exercise in administrative law, but in a nutshell, she determined that EPA was outside of its authority when it withdrew its specification consquently making the permit invalid. The court did acknowledge, however, that "it is undeniable that the provision in question [under the Clean Water Act] is ackwardly written and extremely unclear."

The court was not required to go into such a lengthy analysis on the merits because the issue before it was a summary judgment motion, yet it did here probably to explain how it found its way through the complicated and sometimes ambiguous language in the Clean Water Act. Although the Supreme Court took a much different approach in Sacket leaving the merits issues for the lower courts to decide, it whole-heartedly agreed with Judge Berman Jackson here that the Clean Water Act is not a user-friendly statute.

So, there you have it. The EPA has found itself yet again caught in the torrents of the Clean Water Act. We want EPA authority to be effective, but not in a high-handed way. Coal mining can be an extremely unfriendly to the environment, there is no argument there. However, Mingo Logan spent the better part of a decade working with the Corps and other agencies to achieve the authorizations it required to operate its mine. That is what Congress has asked for in the Clean Water Act, and as a result, the mine should be able to operate as authorized as long as it stays within the confines of its permitting activities.