Breaking: Judge overturns EPA veto of Spruce Mine

March 23, 2012 by Ken Ward Jr.

Here’s the latest, just reported by the AP’s Vicki Smith:

A federal judge says the U.S. Environmental Protection Agency exceeded its authority in revoking permits for what could now become West Virginia’s largest mountaintop removal mine.

In a ruling Friday, U.S. District Judge Amy Berman Jackson in Washington, D.C., ruled in favor of St. Louis-based Arch.

She declares a U.S. Army Corps of Engineers water pollution permit for the Spruce No. 1 mine in Logan County is “valid and in full force.”

Arch spokeswoman Kim Link says the company is pleased with the decision.

The EPA vetoed the corps’ permit for the mine in January 2011, saying it would cause irreparable damage to the environment.

The move enraged both the coal industry and West Virginia politicians, several of whom have since introduced bills to try rein in the EPA.

I’ve posted a copy of the ruling here, and you can read previous posted with background on the Spruce Mine controversy here, here, here and here.

Arch Coal spokeswoman Kim Link issued this brief statement earlier:

We’re pleased the district court has ruled in our favor — confirming that our Spruce No. 1 permit remains valid.

After EPA issued this after-hours (and after Gazette deadlines) comment:

EPA and the Department of Justice are reviewing today’s decision by the D.C. District Court. Today’s decision does not affect the EPA’s commitment to protect the health of Appalachian communities who depend on clean water.

Statements from industry, environmentalists and regional political leaders also flooded in this evening. For example, Gov. Earl Ray Tomblin said:

This is a huge victory for West Virginia and our coal miners. I want to thank Judge Jackson for recognizing that the EPA and the federal government were completely wrong in revoking this permit. I now call upon Lisa Jackson and the EPA to admit that they have gone too far — enough is enough.  Issue our permits so that we can put our people back to work and provide the resources that will power America.

Local, regional and national citizen and environmental groups issued this statement:

It is a sad day not only for the people who live near mountains and streams threatened by mountaintop removal coal mining, but for all Americans who understand the need to protect our waterways, and the health of communities that depend on them. We are deeply disappointed and concerned about the effect of today’s court ruling because mountaintop removal mining has already caused widespread and extreme destruction to the mountains, waters, and communities of Appalachia. The Spruce No. 1 Mine permit, in particular, was one of the largest mountaintop removal permits ever proposed in Appalachia, and it is located in an area of West Virginia that has already been devastated by several large mountaintop removal mines.

To more fully summarize the ruling:

U.S. District Judge Amy Berman Jackson ruled that the federal Environmental Protection Agency is not authorized to withdraw a Clean Water Act permit that was already issued by the Army Corps of Engineers.

“This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute,” Jackson wrote in a 34-page opinion that’s been highly anticipated by all sides in the mountaintop removal debate.

Jackson called the language at issue in the law unclear and confusing, but said that EPA’s reading was not a reasonable interpretation.

“It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration,” the judge wrote. “Poof! Not only is this nonrevocation-revocation logistically complicated, but the possibility that it could happen would leave permittees in the untenable position of being unable to rely upon the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.

“It is further unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality.”

We’ll have a more detailed story on the ruling in Saturday’s Gazette-Mail [Here’s a link to that story], and we’ll talk more about it on Coal Tattoo next week, after everyone — including me — has had more time to digest the decision.

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