Coal Tattoo

Big news just in from Richmond, Va., where the 4th U.S. Circuit Court of Appeals has issued a major decision that the West Virginia Department of Environmental Protection is indeed required to obtain permits and set discharge limits for abandoned coal mines under the control of its Special Reclamation Program.

A three-judge panel from the 4th Circuit upheld the previous decision by U.S. District Judge Irene M. Keeley, who in January 2009 ruled in favor of the West Virginia Highlands Conservancy in its suit to try to force reforms of the WVDEP special reclamation system.

In this 17-page decision issued just today, Judge J. Harvie Wilkinson III of the 4th Circuit explains that the Clean Water Act requires  “any person”  who discharges “any pollutant” into rivers and streams to obtain a permit for that pollution discharge. Wilkinson dismantled a variety of arguments made on WVDEP’s behalf by its outside lawyer, Ben Bailey, including that the agency didn’t create the abandoned mine site in the first place and therefore should not have to obtain a permit with a discharge limit during the reclamation process:

… The statute takes the water’s point of view: Water is indifferent about who initially polluted so long as pollution continues to occur.

Wilkinson also dismissed the arguments made by WVDEP and by the Interstate Mining Compact Commission that even if permits were written for these abandoned mine sites, the discharge limits in them would be impossible to comply with:

These arguments get things backwards. For one thing, these consequences are as of now largely speculative. The sky did not fall when WVDEP had to obtain an NPDES permit for the Alton project site, and for all of WVDEP’s and IMCC’s  cataclysmic predictions, we may not assume the sky will fall now. More importantly, we are not in the business of rewriting laws whenever parties allege it is difficult to comply with them.

Exempting the state on those grounds risks sending the wrong message to mining companies: Don’t bother complying with the permits, because the state won’t either.

Moreover, the 4th Circuit concluded:

… These arguments about the heavy burdens imposed by the permit program are hardly novel. Any time Congress imposes a permit scheme, some regulated entities will complain that the permits impose onerous costs and will lead to all manner of hazardous consequences. Here, Congress has determined that a permitting scheme is the crucial instrument for protecting natural resources. It is for Congress to weigh the consequences of compliance with the laws it enacts.

In passing the NPDES scheme, Congress considered the costs and decided that the benefits were worth it. If Congress somehow struck the balance wrong, it is for Congress to correct it.

Along with Keeley’s decision in West Virginia’s Northern District, WVDEP was also facing an order from U.S. District Judge John T. Copenhaver Jr. in Southern West Virginia requiring the state to start writing permits with discharge limits for special reclamation sites.

At the end of its ruling, the 4th Circuit offered WVDEP some advice:

… WVDEP’s state law obligations to take over bond forfeiture sites and engage in reclamation efforts invoke Clean Water Act obligations to obtain NPDES permits. Permit requirements are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Virginia can attempt to ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states that move to ameliorate the problems private companies leave behind. Or WVDEP can address the other side of the equation and increase the funds available for reclamation, either by raising the SRF tax on coal or enlarging the bonds mining companies must post before beginning their work.