Coal Tattoo

We’re just getting word that the U.S. District Court for the District of Columbia has issued an opinion in the National Mining Association’s lawsuit challenging the federal Environmental Protection Agency’s crackdown on mountaintop removal coal mining.

As I understand it, U.S. District Judge Reggie B. Walton denied EPA’s motion to dismiss the case, but also denied the coal industry’s request for a preliminary injunction. The ruling is dated Friday.

UPDATED: In siding with the NMA over EPA’s arguments that the agency’s new permit review policies and water quality guidance were not final agency actions ripe for judicial review, the judge concluded:

Although the federal defendants stress in their filings, and vigorously reiterated at the December 15, 2010, hearing, that the [new permitting reviews and guidance] impose no new substantive requirements on permit applications … it is clear to the Court that the EPA has implemented a change in the permitting process.

UPDATED 2: The judge ruled that the mining group is likely to prevail on the merits on the issue of whether EPA ignored proper procedures for rulemaking and exceed its authority. But — in a matter previously discussed here on Coal Tattoo — ruled that the industry had not made the showing of “irreparable harm” necessary for a preliminary injunction:

… The plaintiff has not shown that its small business members face irreparable harm in the form of certain or imminent business closings due to delays in receiving permits caused by the Guidance Memorandum.

… If a plaintiff has shown that financial losses are certain, imminent and unrecoverable, then the imposition of a preliminary injunction is appropriate and necessary; here, however, the plaintiff has not demonstrated the imminence of any of its members’ losses. In fact, and perhaps most importantly to this discussion of the role of recoverability in the irreparable harm calculus, the plaintiff has not even shown that the losses are wholly unrecoverable.  While the plaintiff has correctly asserted that it cannot recover economic losses in the form of money damages from the EPA and the Corps due to sovereign immunity, the plaintiff has not demonstrated how or why these losses cannot ultimately be recovered if and when the mining projects are permitted to proceed.

The NMA has posted a copy of the ruling here, and the group issued this statement:

In denying EPA’s request to dismiss the case, District Judge Reggie B. Walton strengthened NMA’s arguments that EPA’s policies are ‘final agency actions’ subject to judicial review by finding NMA is likely to prevail in its assertion that EPA has violated the Administrative Procedures Act and the Clean Water Act. Further, the court agreed with NMA that the Clean Water Act envisions a much more limited role for EPA than has recently been pursued by the agency by observing, ‘It seems clear. . .that Congress intended the EPA to have a limited role in the issuance of Section 404 permits, and that nothing in Section 404 of the Clean Water Act gives the EPA the authorization to develop a new evaluation or permitting process which expands its role. . .EPA has encroached upon the role carved out for the states under the Clean Water Act by setting region-wide conductivity standards.’

While we are disappointed the court dismissed NMA’s request for a preliminary injunction to block implementation of EPA’s policies, we remain committed to pursuing the merits of our case.

EPA officials said they are reviewing the decision.


Judge Walton added, toward the end of the ruling:

While it may be true that the challenged EPA actions were “designed to significantly reduce the harmful environmental consequences of Appalachian surface coal mining operations, while ensuring that future mining remains consistent with federal laws.” these environmental interests — the actual environmental impact of surface mining — are not currently before the court.

It may well be that [EPA’s actions] are necessary to protect the environment, especially considering the assertion made by counsel for the defendant intervenors [environmental groups] that the substantive requirements of the Clean Water Act were essentially ignored by the prior Administration, but the Court need not make that assessment now.

Whether the current or the prior Administration’s actions are in compliance with the APA and the Clean Water Act is an inquiry that can be left for another day.