Charleston Daily Mail - Federal Judge Sides with Coal Industry Over EPA

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The U.S. Environmental Protection Agency unlawfully tried to curb coal mining operations, a federal district court judged ruled Thursday.

The EPA exceeded its own authority beginning in June 2009 when it set up a new process for issuing clean water permits in an effort to protect mining communities from polluted water, according to a decision by U.S. District Judge Reggie Walton. By doing so, it entangled permits necessary to Appalachian coal operators, Walton said.

The decision is a blow to the Obama administration's crackdown on Appalachian mining operations. Industry and state political leaders hailed Walton's ruling.

However, it was too soon to tell what the ruling's practical effect would be for mine operators. That's because operators face other regulatory hurdles that also effectively curb mining operations, though Walton will hear a challenge next summer to one of the biggest remaining hurdles.

At issue in Thursday's ruling were Clean Water Act permits, known as "404 permits." Among other mining practices, 404 permits are necessary for valley fills. That's the industry practice of taking excess rock from mountaintop mining sites and putting the rock and dirt into nearby valleys and burying streams.

The vast majority of West Virginia surface mines require valley fills. Surface mining accounts for about 40 percent of the state's coal production.

The Army Corps of Engineers has the authority to grant 404 permits, but the EPA is allowed to comment on and, under certain circumstances, veto the 404 permits before the Corps has issued them.

But in 2009, after President Barack Obama took office, the EPA announced a set of "enhanced coordination procedures" that the EPA said would strengthen the environmental review of pending mining applications and help address a backlog of permit decisions. The backlog was created, in part, by another court case over the permits.

But the National Mining Association and industry boosters said the process was instead burdensome and unclear. The association sued the federal government, as did the West Virginia Department of Environmental Protection.

The DEP, at the direction of then-Gov. Joe Manchin, said the EPA had overstepped its authority on several counts.

The EPA's lawyers argued that the coordination is necessary. The EPA pointedly noted that even before Obama took office it could veto 404 permits. Walton's ruling leaves that power intact.

Walton didn't agree with the EPA. He said the EPA had gone beyond its legal authority.

"Thus, while it is true that the EPA does have some role to play in the Section 404 permitting process, the carving out of limited circumstances for EPA involvement in the issuance of Section 404 permits appears to be a statutory ceiling on that involvement," Walton said.

Republican President George W. Bush nominated Walton to the federal bench in 2001.

Manchin, now a U.S. senator, said he was "excited" by Walton's ruling.

"I'm very hopeful that this will put us on the path of receiving the permits that are needed to provide the energy and the jobs not just for West Virginia but for this entire country," Manchin said in a statement. "This is a great day for West Virginia."

As governor, Manchin had argued the EPA was overstepping its authority. While Walton ruled that the EPA had gone too far into the Army Corps' turf, another part of the suit that he will address later argues that the EPA is going too far into the DEP's turf.

But environmental groups have argued state environmental regulators, including the DEP, had not done enough to protect citizens from mining activities. They applauded Obama's attempt to give more say to federal regulators but feared Thursdays blow to those efforts.

"Without strong federal oversight and scrutiny of individual permit applications we in West Virginia will find ourselves once more in a rapid decline and a race to the bottom in the universe of protecting our streams and communities from the destruction of the coal industry," Cindy Rank of the West Virginia Highlands Conservancy said in a statement. "We will never be able to effect change from within our individual states without federal input and the voices of everyone across the country that care about our nation's waters to call and voice their support for strong EPA action on mountaintop removal mining."

Other members of the congressional delegation were, like Manchin, enthusiastic about Walton's ruling.

Rep. Shelley Moore Capito, R-W.Va., said in a statement, "It's about time the courts ruled 'enough is enough' by reestablishing the Army Corps of Engineers' role as the primary permitting authority.

Gov.-elect Earl Ray Tomblin said Thursday was "a great day for West Virginia and West Virginia's mining industry."

Rep. David McKinley, R-W.Va., said in a statement, "West Virginians didn't need a court to point out that the ideologically motivated EPA is out of control."

The EPA, meanwhile, said it could continue to protect the environment in spite of the ruling.

"The U.S. Environmental Protection Agency wants to reassure families living in Appalachia that today's District Court ruling was a procedural decision that does not affect our Clean Water Act authority to protect them from public health and environmental impacts caused by poor coal mining practices," the agency said in a statement.

The agency did not immediately say whether it planned to appeal Walton's ruling.

But Rep. Nick Rahall, D-W.Va., said he did not want to see an appeal.

"I urge the Department of Justice and this EPA not to appeal this decisiom," Rahall said in a statement.

For now, the agency still has the power to curb coal mining in Appalachia.

That's because there's also another set of EPA-made rules that strictly limit what can end up in the water. Those rules are also effectively curbing the release of new mine permits.

The industry and the DEP lawsuit also argued those rules were illegal. Walton will not hear the argument about those rules until next June.

"Today's ruling is only half the battle," DEP Secretary Randy Huffman said Thursday in a statement.

Even under Judge Walton's ruling, the EPA can continue to hold up 404 permits. But -- instead of entangling the permits in the "enhanced" review process, the EPA would have to publicly veto them. That's something that could draw further scrutiny at an agency that has already become the focus of Republican attacks on the Democratic White House.

"They would have to say 'no' to the Corps and articulate why and then face the consequences of doing that," said Jason Bostic, a spokesman for the West Virginia Coal Association.

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