U.S. Court of Appeals Affirms EPA’s Authority to Revoke Mountaintop Removal Coal Mining Permit

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Posted May 15, 2013

Interview with Emma Cheuse, EarthJustice attorney, conducted by Melinda Tuhus

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On April 23rd, the U.S. Court of Appeals in Washington, D.C. reversed a lower district court decision that would have allowed the company with the largest mountaintop removal site in West Virginia – the Spruce No. 1 mine – to begin blasting the mountain apart to access the coal seams beneath. The court's ruling, handed down by a three-judge panel, all of whom were Republican appointees, affirmed that the Environmental Protection Agency has the authority under the Clean Water Act to veto a mining permit, even after a permit was issued by the U.S. Army Corps of Engineers.

Attorneys from the group EarthJustice worked on behalf of several local citizens' groups that supported the EPA's jurisdiction in this case in order to prevent an industrial operation that would cover 2,000 acres and bury six miles of streams, some of them headwaters supplying drinking water to surrounding communities.

Between The Lines’ Melinda Tuhus spoke with EarthJustice Senior Associate attorney Emma Cheuse, who provides a short history of the now halted mining operation and its significance to all communities located near extractive industries. The fight over Spruce No. 1 is cited by Republicans in Congress as proof that the EPA has overstepped its authority. GOP senators are now using that accusation and what they characterize as an anti-fossil fuels agenda to hold up the nomination of Gina McCarthy, current EPA assistant administrator in the Office of Air and Radiation, to become President Obama's EPA chief, succeeding Lisa Jackson.

EMMA CHEUSE: In, I believe, 2007, the Corps of Engineers issued a new permit to allow the coal company to dump mining waste, and local citizen groups in Appalachia immediately challenged that permit as unlawful under the Clean Water Act. And so, it was again put on hold. During the course of this time, the science was really building to show overwhelmingly that this kind of project causes devastating harm, not just because it completely destroys vital mountain streams that are the starting point for the whole watershed and ecosystem in the area, but also because it puts pollution downstream that kills aquatic life that are the building blocks for the whole natural area for fish, for birds, and contaminates the water for communities that are relying on that. And so the science was building this whole time. A lot of it came to a head in key scientific research that came out in 2008, and then in 2009 EPA took a look at this science and recognized the need to actually take all these concerns that they'd been raising over the years and turn that into action, so 2009 was when EPA started the process for re-evaluating the disposal of mining waste under this permit. Now, keep in mind the permit was on hold during this time so nothing was really happening there. So EPA started the process in 2009 and after going through that careful evaluation, reviewing the science, looking at all angles of the issue, in 2011 EPA issued its final veto, which withdrew the authorization to dump mining waste into key streams that are some of the only remaining healthy waterways in that area.

BETWEEN THE LINES: So the company won a round a few years back...

EMMA CHEUSE: The district court initially ruled that EPA did not have the authority to withdraw the authorization to dump the mining waste after the Corps issued the permit. EPA appealed that decision, and on April 23, the court of appeals here in Washington reversed the district court and found that the Clean Water Act does fully authorize EPA to act whenever it finds that there's unacceptable harm that would occur to waters. So it upheld EPA's authority to act, that it's never too late for EPA to act as long as it can prevent unacceptable harm. And that's a really important component of EPA's authority that Congress granted under the Clean Water Act.

BETWEEN THE LINES: I can imagine the current Congress never approving anything like that, and in fact, this EPA decision to withdraw authorization for a permit previously granted by the Army Corps of Engineers is one of the things Republicans are now saying shows the EPA has exceeded it authority. And since Gina McCarthy worked directly under former EPA administrator Lisa Jackson and was very involved in this decision, they're saying McCarthy should not be confirmed as Jackson's successor. But anyway, is the denial of the permit final?

EMMA CHEUSE: It's not the end yet. The court of appeals only resolved the question of EPA's authority. So the court said, Yes, the Clean Water Act gave the EPA the authority to act after there's a permit because that's a very vital environmental backstop that we need EPA to have and that Congress gave EPA. The rest of the case now goes back to the district court; the coal company has challenged the veto on some other grounds also, and the rest of the issues remain to be resolved.

BETWEEN THE LINES: But while it's being litigated, the company can't proceed with blasting the mountain apart, right?

EMMA CHEUSE: That's right. So the project remains on hold, and EPA has succeeded in protecting these vital waterways from the permanent, irreversible harm that this project would cause. This is a landmark ruling for a number of reasons. This case is about one of the largest mountaintop removal mines ever proposed in the Appalachian region. It's just vital that EPA have the authority to be able to step in and protect communities and waters that would be harmed by this kind of devastating project. So it's a huge moment for communities that have been working for years to try to bring attention to the problem of mountaintop removal mining and to try to help make sure that the people who are supposed to be protecting us, like the people at EPA, really do step up. Now the broader issue here is also very important, because the court of appeals did decide that the EPA has the authority under the Clean Water Act to protect communities after a permit has been issued, and that's a decision that helps protect Americans all over the country whenever their waters are threatened by devastating waste disposal from any kind of industry.

Find more information and commentary on Mountaintop Removal Coal mining on the EarthJustice website at earthjustice.org.

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