Arch Coal unit loses another round against EPA in court

Coal power plant

Arch Coal unit Mingo Logan Coal has lost another legal round with the Environmental Protection Agency in federal appeals court.

A divided U.S. Court of Appeals for the District of Columbia Circuit ruled July 19 that EPA had properly used its “broad veto authority” under the Clean Water Act in connection with a coal mining case in West Virginia.

In 2007, the United States Army Corps of Engineers issued Mingo Logan a permit to excavate the tops of several West Virginia mountains, extract exposed coal and dispose of the excess soil and rock in three surrounding valleys containing streams.

Four years later, after additional study, the EPA decided that the project would result in “unacceptable adverse effect[s]” to the environment, the court noted. The EPA therefore withdrew approval from two of the disposal sites, which together make up roughly 88 percent of the total discharge area authorized by the permit.

In 2013, Mingo Logan challenged the EPA’s statutory authority to withdraw the two sites from the Corps permit after it had been issued but the appeals court determined that the Clean Water Act (CWA) authorized the EPA to do so.

“We then remanded the case to the district court to consider Mingo Logan’s remaining Administrative Procedure Act (APA) challenges. The district court thereafter rejected them,” the appeals court noted.

In the latest case, Mingo Logan appealed the district court’s resolution of the APA claims.

Specifically, the company argued that the EPA failed to engage in reasoned decision making by ignoring Mingo Logan’s reliance on the initial permit, impermissibly considering the effects of downstream water quality and failing to explain adequately why the project’s environmental effects were so unacceptable as to justify withdrawal.

“We conclude that the EPA did not violate the APA in withdrawing specification of certain disposal areas from the permit; rather, it considered the relevant factors and adequately explained its decision,” the D.C. Circuit said in a two-to-one decision. “The EPA’s ex post withdrawal is a product of its broad veto authority under the CWA, not a procedural defect. Accordingly, we affirm,” the court held.

The case had been argued before the three-judge panel on April 11 before D.C. Circuit Judges Karen LeCraft Henderson, Brett Kavanaugh and Judge Sri Srinivasan.

Judge Henderson drafted the majority opinion for the court. Judge Kavanaugh issued 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 said in the dissent.

“Here, however, EPA revoked a Clean Water Act permit without considering the costs of doing so,” according to the dissent. “For that reason, EPA’s decision must be vacated. In my view, EPA must go back to the drawing board and weigh both the costs and benefits of revoking the permit before making its decision,” Kavanaugh said in the dissent.

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