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Federal court upholds EPA’s veto of Spruce Mine permit
July 27, 2016

A federal appeals court ruled that the U.S. Environmental Protection Agency (EPA) followed the law in 2011 when it vetoed a permit that had previously been issued for the Spruce Mine No. 1 by the Army Corps of Engineers.

Using the Clean Water Act, the EPA revoked the mountaintop removal mining permit issued to Mingo Logan Coal Co., a subsidiary of Arch Coal, in 2014 that blocked the construction of Spruce Mine No. 1.

It’s the second time that the District of Columbia Circuit Court of Appeals has rejected attempts by Mingo Logan Coal Co. to reverse the EPA’s decision blocking the mine.

Mingo Logan argued that when the EPA considered revoking the permit, it should have considered the company’s sunk costs from starting work on the mining, should have better explained why the project was so environmentally harmful and should not have considered certain downstream impacts from the mining, The Hill reported.

The court’s majority rejected all of the arguments.

“We conclude that the EPA did not violate the [Administrative Procedures Act] in withdrawing specification of certain disposal areas from the permit; rather, it considered the relevant factors and adequately explained its decision,” two of the court’s judges wrote in their majority opinion. “The EPA’s ex post withdrawal is a product of its broad veto authority under the CWA, not a procedural defect.”

Mingo Logan, along with numerous congressional Republicans, argued that the Clean Water Act does not give the EPA permission to retroactively revoke such a permit. The House has passed legislation to put that in law, but the Senate has not acted on it.

The D.C. Circuit court took up the issue of retroactive vetoing in 2014, and ruled that the EPA was well within its power. It asked a lower court to consider other administrative challenges to the agency’s action, and the company appealed the lower court’s ruling.

Judge Karen Henderson, appointed by President Ronald Reagan, wrote the Tuesday opinion, joined by Judge Sri Srinivasan, a President Obama appointee.

Judge Brett Kavanaugh, appointed by President George W. Bush, disagreed with his colleagues and wrote a dissenting opinion.

“EPA must consider both costs and benefits before it vetoes or revokes a permit under Section 404 of the Clean Water Act. That much is common sense and settled law,” Kavanaugh wrote.

“Here, however, EPA revoked a Clean Water Act permit without considering the costs of doing so. For that reason, EPA’s decision must be vacated.”

 

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