The EPA’s Office of Water Had a Bad Week…

By March 26, 2012Energy

Late Friday afternoon the U.S. District Court for the District of Columbia issued a ruling on the Mingo Logan Coal Company case.  This case was important because the question at hand was could the Environmental Protection Agency (EPA) withdraw a permit issued by the Army Corps of Engineers (Corps). 

The EPA withdrew its approval of certain creeks as disposal sites for a mine four years after it had given its assent to a permit issued by the Corps. The Mingo permit had always been in compliance and there was no question in that regards. EPA had simply changed their mind and revoked the approval of the disposal sites.

Arch Coal, owner of the Mingo Logan Coal Company, sued EPA and challenged their authority to veto the permit after the fact. The District Court agreed with Arch Coal that EPA exceeded their authority under the Clean Water Act when they attempted to invalidate an existing permit.  The court concluded that Clean Water Act does not give EPA the power to render a permit invalid once it is issued by the Corps.

What does this all mean? First, that the EPA has finally reached a point where even the U.S. District Court for the District of Columbia had to say no and slap their hands. Second, it means that EPA actually has to follow the law and can’t do whatever they darn please. Third, it means that businesses can rely on federal permits. Although it may cost them hundreds of thousands of dollars and years of effort to obtain a permit, once they make the investment and get the permit, the EPA can’t simply change their mind and veto it.

The court described the EPA’s actions, “It posit[ed] a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!” Judge Amy Berman Jackson went on to say that “EPA resorts to magical thinking” when coming up with a reason to  try to nullify the permit.

Even if the agency were accorded some deference under administrative law procedures, the agency’s interpretation was unreasonable and could not stand. The judge also cited the NAM’s amicus brief to show that eliminating finality from the permitting process would have a significant economic impact on industry, in turn making EPA’s assertion of power less reasonable. This was a significant victory for manufacturers and the rule of law.

If this were not enough, the Supreme Court ruled 9-0 against the EPA in the Sackett case, which involved two landowners in Idaho who attempted to build a home on their property. After they got local building permits and started work, the EPA ordered them to stop and turn the land to its previous condition, or face huge daily fines. They sued to challenge the EPA’s order.

The EPA maintained that the owners had no right to take them to court to contest whether or not there had been a violation of the law. The Supreme Court ruled that the EPA can’t deny landowners their day in court.

These are rulings that send a clear message to the EPA that it is no longer business as usual. It’s important for the EPA to work with land owners and businesses, instead of trying to veto existing permits or imposing fines and other penalties that will cost jobs and harm the economy.

Chip Yost is vice president of energy and resources policy, National Association of Manufacturers.

Join the discussion One Comment

  • Kaso says:

    Hi Chip, just found the site and wanted to say that we manufacturers need places to connect and collaborate more. On the topic of the EPA, I hadn’t heard of the Sacket case but am not surprised by the decision.

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