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Federal Court Rules for Mining Industry and States in Challenge to EPA Permit Review Guidance

12.01.2011

A federal judge has struck down EPA’s controversial April 1, 2010 “Interim Guidance” on coal mine permitting reviews, in the case of National Mining Association v. Jackson.  As previously reported in the Greenebaum Environmental Letter, coal industry groups, along with the states of Kentucky and West Virginia, filed suit in the federal district court for the District of Columbia challenging EPA’s “detailed guidance” memorandum on surface coal mine permitting in Appalachia.

On October 6, 2011, the court granted summary judgment to the National Mining Association, states, and industry groups.  The court held that the U.S. Environmental Protection Agency’s (EPA) role in the “enhanced review” process for Section 404 dredge and fill permits issued to surface coal mines exceeded the agency’s authority under the Clean Water Act and interfered with the Army Corps of Engineers’ role in the permitting process.  The court held that the Corps, not EPA, has primary authority to issue 404 permits.  The court also found that EPA’s “guidance” was being used by EPA as a binding rule, and therefore, should not have been issued without public notice and comment.  Because there was no notice and comment prior to the implementation of the guidance, the court held that the guidance violated the federal Administrative Procedures Act.

Almost immediately after the ruling was announced, EPA released a statement indicating that the ruling “does not affect our Clean Water Act authority…”  This announcement was likely based on the fact that EPA released its “final” guidance on Appalachian surface coal mine permitting in July 2011, and this final guidance was not before the court in the National Mining Association case.  The July 2011 final guidance contains many of the same provisions the coal industry and states found objectionable in the April 2010 guidance, and the industry has not seen an increase in the approval of new permits under the “final” guidance.  (For more on the July 2011 guidance, see the last issue of the Greenebaum Environmental Letter).

In light of the new final guidance, the District of Columbia court allowed the parties to amend their complaints in the case, and on October 14, 2011, the National Mining Association, Kentucky, and other plaintiffs filed new complaints seeking to overturn the final guidance.  EPA has not yet responded to these complaints, and it is not clear when the court will hear arguments related to the new guidance.


To view a complete PDF of the Third/Fourth Quarter 2011 issue of the Environmental Letter, click HERE.

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