On Friday, EPA filed a notice of appeal in the case Mingo Logan v. Environmental Protection Agency, litigation over EPA’s retroactive veto of a validly-issued Clean Water Act permit to Mingo Logan Coal Company to discharge fill material from it Spruce Mine No. 1 coal mine. I guess I shouldn’t be surprised by this, but given the tone of U.S. District Judge Amy Berman Jackson’s opinion in the case, I am.
Judge Berman Jackson held that EPA exceeded its authority when it retroactively vetoed the Spruce Mine permit, a move that was “unprecedented in the history of the Clean Water Act.” The Court concluded that the Clean Water Act “does not give EPA the power to render a permit invalid once it has been issued by the Corps,” and that “EPA’s interpretation of the statute to confer this power on itself is not reasonable.” Later in the opinion, the Court described EPA’s actions as “the air of a disappointed player’s threat to take his ball and go home when he didn’t get to pitch.”
There’s a good public policy reason for holding as much, because the precedent created by EPA’s veto would have been significant. As Judge Berman Jackson wrote:
It is further unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality. Indeed, this concern prompted a number of amici to take up their pens and submit briefs to the Court. They argued that eliminating finality from the permitting process would have a significant economic impact on the construction industry, the mining industry, and other “aggregate operators,” because lenders and investors would be less willing to extend credit and capital if every construction project involving waterways could be subject to an open-ended risk of cancellation. See Brief of Amicus Curiae The National Stone, Sand and Gravel Association in Supp. of Pl. Mingo Logan Coal Co., Inc. at 5–13; Brief of Amici Curiae the Chamber of Commerce of the United States et al. in Support of Pl. at 7–14. EPA brushed these objections away by characterizing them as hyperbole, Tr. at 66, but even if the gloomy prophesies are somewhat overstated, the concerns the amici raise supply additional grounds for a finding EPA’s interpretation to be unreasonable.
So the question then is, what could EPA possibly argue as a reason for appeal? That it should be allowed under the Clean Water Act to create the uncertainty that all of these industries warned against?
Ross Eisneberg is vice president of energy and resources policy, National Association of Manufacturers.