The Times West Virginian

April 25, 2013

Stability, certainty are threatened by appeals court ruling in Spruce Mine case


Times West Virginian

— Stability and certainty are critical factors for the coal industry — any business, for that matter.

A court ruling Tuesday over a permit for the Spruce No. 1 Mine in Logan County has frustrated leaders in the coal business and angered state lawmakers.

A federal appeals court ruled that the U.S. Environmental Protection Agency had the legal authority to retroactively veto a water pollution permit for one of West Virginia’s largest mountaintop removal mines years after it was issued.

Last year, U.S. District Judge Amy Berman Jackson in Washington, D.C., overturned the EPA’s veto, stating that it had overstepped its authority.

Tuesday opinion, written by Judge Karen LeCraft Henderson in the U.S. Court of Appeals, overturned Jackson’s ruling.

In January 2011, the EPA revoked a permit that the U.S. Army Corps of Engineers had issued four years earlier to St. Louis-based Arch Coal and its Mingo Logan Coal Co. subsidiary. The EPA concluded that mining practices at the 2,300-acre Logan County mine would cause irreparable environmental damage and threaten the health of communities nearby.

Last year, Jackson wrote that the “statute does not give the EPA the power to render a permit invalid once it has been issued by the Corps.”

The appellate decision, however, says Congress made its intent plain in “unambiguous language” giving EPA “a broad veto power extending beyond the permit issuance.” Nor does the law impose a time limit for EPA to act, she wrote, instead empowering it to do so whenever it determines an “unacceptable adverse effect” will result.

The Spruce Mine case is only the 13th time since 1972 that the EPA had used the veto authority and the first time it acted on a previously permitted mine.

The appellate court directed Jackson to address the coal industry’s argument that the EPA’s action was an “arbitrary and capricious” violation of the Administrative Procedure Act.

West Virginia lawmakers of both political parties vowed they would take action.

“For too long now, the EPA has been waging a destructive war against Appalachia coal mining, and it is costing countless American jobs and investment,” Sen. Joe Manchin, D-W.Va., said. “If we are ever going to recover from our fragile economy, American businesses must have certainty in the marketplace. It is simply common sense to allow companies that already have been granted permits to continue the work they have started. We simply cannot afford to stifle energy production and good-paying jobs.

“(Tuesday's) court decision is yet another example of bureaucracy at its worst: One agency grants a permit; another agency takes it away, and business suffers in the end. The federal government should be an ally, not an adversary, in helping to strike a balance between protecting the environment and creating good American jobs.”

“In 2011, EPA took the unprecedented action of revoking a permit at the Spruce No. 1 Mine, which had been issued years prior, an action which sent a chilling effect throughout the American economy,” said Rep. David McKinley, R.W.Va. “If EPA can retroactively pull a permit at a coal mine, what’s to stop them from doing so at any construction site or manufacturing plant?”

U.S. Rep Nick Rahall, D-W.Va., warned the ruling could “open the floodgates to disrupting coal mining in West Virginia and elsewhere” and “upend the traditional balance that has existed between the states and the federal government in the permitting process.”

“(Tuesday’s) federal appeals court ruling further highlights what Congress is up against in President Obama’s war on coal,” Rep. Shelley Moore Capito, R-W.Va., said. “Unfortunately, the decision was the wrong one and will deeply affect hard-working West Virginians. The Environmental Protection Agency has continued to overstep its bounds in its efforts to implement the president’s anti-energy policies. Not only will this ruling cost West Virginians hundreds of jobs, but it begs the question: Who is safe? If the EPA can take back a permit from a coal mine in West Virginia, they can do the same to any business in America.”

We don’t question the need for regulation of controversial mountaintop mining. If coal mining or any business is to succeed, though, there must be some consistency from agency to agency, administration to adminstration. What’s the motivation to invest if a permit can be pulled years after approval?

Congressional action to clarify matters is long overdue.