Bluefield Daily Telegraph, Bluefield, WV

December 22, 2013

Spruce Mine permit: Unified EPA opposition

Bluefield Daily Telegraph

— — The decision by the federal Environmental Protection Agency in 2011 to retroactively veto permits issued by the Army Corps of Engineers for Mingo Logan Coal Company’s Spruce surface mine nearly four years after they were granted sent a chilling message to coal-producing communities across southern West Virginia and Southwest Virginia.

Hundreds of jobs were threatened, and the Obama administration had reached a new low in its war on coal. Now — three years later — West Virginia is finally fighting back. It was announced just last week that the Mountain State is now leading a bipartisan group of 27 other states in an amicus, or friend of the court, brief urging the U.S. Supreme Court to review the Environmental Protection Agency’s retroactive veto of the Clean Water Act permit issued to the Spruce mine.

According to West Virginia Attorney General Patrick Morrisey, the states’ involvement in the case is about protecting jobs and ensuring the EPA is not the lone arbiter in deciding whether economic development projects may proceed. The high court challenge is the correct course to take.

 “At its essence, this lawsuit is about jobs in West Virginia and elsewhere,” Morrisey said last week. “The EPA unlawfully vetoed permits issued by the Army Corps of Engineers nearly four years after they were granted, putting hundreds of jobs on the line. But this case is about more than coal mining. It’s about the ability of states such as West Virginia to be able to engage and promote economic development, highway construction, and other needed investments without fearing a federal agency will step in years later and halt the project. That is why we strongly support Mingo Logan Coal Co.’s appeal to the U.S. Supreme Court.”

 West Virginia was joined on the brief by a bipartisan group of states including Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin and Wyoming

Bill Raney, president of the West Virginia Coal Association, says the friend of the court brief is welcomed.

“Since his taking office earlier this year, Attorney General Morrisey has been at the forefront of confronting the out-of-control EPA’s assault on our hard working coal miners,” Raney said, adding the “announcement of a friend of the court filing is just the latest example of his commitment to restoring the necessary balance between federal and state authority.”

 Some of the states who joined are coal producing states, but most are not, according to Morrisey. The hope of the 27 states is to send a strong and unified message that the EPA was out of line in retroactively vetoing the Spruce Mine permits.

The states’ brief argues the EPA exceeded its authority under subsection 404(c) of the Clean Water Act when it effectively vetoed a permit (known as a 404 permit) issued by the U.S. Army Corps of Engineers for the Spruce surface mine in Logan County. Mingo Logan sued the EPA and, in 2012, a federal district judge sided with the company. The EPA appealed to the U.S. Court of Appeals for the District of Columbia, which earlier this year threw out the lower court’s ruling. Mingo Logan is now seeking to have its appeal heard by the U.S. Supreme Court.

 The states argue that the EPA’s decision to gut an already-issued permit has sweeping nationwide consequences for state and local governments. Of the 13 permits vetoed by the EPA since the Clean Water Act was implemented, more than half have been public works projects, such as flood prevention and water supply ventures. The brief argues that if the EPA’s unlimited veto power is upheld, any public work project that has to receive a 404 permit would be subject to unending uncertainty. The states also argue the EPA could use its newly expanded authority to encroach upon other powers granted to the states in the Clean Water Act.

 “If EPA’s extreme position is upheld by the U.S. Supreme Court, no state project requiring a 404 permit is safe, regardless of its worthiness or how much it benefits the public,” Morrisey correctly notes. “The EPA’s anytime-veto authority would have drastic consequences on state budgets because it would enable the EPA to stop a project — be it by a private company or a government agency — even after all of the conditions and terms of the permit were met and the project is substantially underway.”

 The idea that an already-granted permit is no longer acceptable upsets the whole system that has been in place since the Clean Water Act was enacted, according to Morrisey. It also places every economic development project or public works project that needs a 404 permit at the mercy of the political agenda of those at the helm of the EPA.

We agree. This unfair overreach and presumed “anytime veto-authority” of the EPA should be a concern for all towns, cities, counties and states. We are pleased to see Morrisey, and the 27 other states, taking this long overdue stand against the EPA. Actions speak louder than words. And West Virginia — with help from other states — is finally fighting back.