On July 31 Judge Reggie Walton (U.S. District Court for the District of Columbia
Today’s
opinion from Judge Walton represents the second part of the case filed by the
State of West Virginia, the National Mining Association and others challenging
various parts of the “coordinated” federal regulatory review and consideration
of Appalachian coal mining operations outlined in a multi-agency
Memorandum of Understanding in June 2009.
In
the first part of the case, Judge Walton invalidated the “Enhanced Coordinated
Process” for reviewing coal-mining related Clean Water Act (CWA) Section 404
permits by EPA and the U.S. Army Corps of Engineers. In the attached
order, Judge Walton declares “…the Final [conductivity] Guidance, as an
unlawful agency action, is hereby set aside.”
In
the attached decision, Judge Walton concludes that EPA has overstepped its
authority and trampled the rights reserved to individual states under the CWA:
Accordingly, the EPA’s “presumption” that,
based on the scientific studies regarding conductivity, it is likely that all
discharges will lead to an excursion or that the conductivity studies will be
instructive on the matter, removes the reasonable potential analysis from the
realm of state regulators. In other words, by presuming anything with regard to
the reasonable potential analysis, the EPA has effectively removed that
determination from the state authority. And there can be no question that a
plain reading of the regulation leaves that determination, and the decision as
to when it must be made, solely to state permitting authorities.
Should the EPA wish to alter the manner by
which an reasonable potential analysis is conducted, it is of course free to
amend the regulation in a manner consistent with the APA and its own statutory
authority. Until it does so, however, it cannot make the reasonable potential
determination for the states.
Judge Walton also ruled that EPA has
illegally sought to extend its influence and control to regulatory areas
addressed by the Surface Coal Mining & Reclamation Act and individual state
mining regulatory programs:
…in circumstances where the EPA lacks the
authority to issue the permits, whether there is overlap between requirements
for SMCRA permits and CWA permits is of no moment. Accordingly, the EPA cannot
justify its incursion into the SMCRA permitting scheme by relying on its
authority under the CWA—it has no such permitting authority. The EPA has
therefore impermissibly interjected itself into the SMCRA permitting process
with the issuance of the Final Guidance.
This is an important rejection of EPA's attempt to control mining through imposition of conductivity criteria that are difficult to meet. Here is some of the reaction from Bloomberg and the Washington Post
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