In a decision on Tuesday that must have sent shivers down the spine of every coal company executive, the D.C. Circuit Court of Appeals restored EPA’s authority to withdraw the specification of streams for the disposal of mountaintop mining wastes – years after the Army Corps had issued the permit containing the specification. Indeed, Daily Environment Report quoted National Mining Association CEO Hal Quinn as saying that the decision, in Mingo Logan Coal Company v. USEPA
has pulled the regulatory rug out from under the feet of U.S. companies, eliminating the certainty of permits and upending an already complicated permitting process.
A quick read of the decision persuades me that he better get used to it, because this decision is not going to get reconsidered by the full court or flipped by the Supreme Court. The decision, by a unanimous panel of Bush appointees (one by H.W. and two by W.), relied on the unambiguous plain meaning of the statute.
Section 404(c) of the Clean Water Act provides that
The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect….
The use of the word “whenever” was pretty much the end of the story for the Court. Noting that “whenever” imposes no temporal limitation on EPA’s decision-making, the Court concluded under Chevron that § 404(c) “unambiguously expresses the intent of Congress.” The Court’s holding was “further buttressed” by the CWA’s grant of authority to EPA to withdraw specifications, as well as prohibit them. Since the specifications are generally included in the Corps permit, the Court concluded that withdrawal authority doesn’t even make sense except after the fact.
Why is this decision not going to get flipped? Because the conservative wing of the Supreme Court, which might otherwise sympathize with coal company complaints about EPA high-handedness, likes plain meaning jurisprudence – and because the meaning really is pretty plain.
Withdrawal may be technically sound as well, e.g., in instances where the cumulative loadings of persistent contaminants like heavy metals from the disposal site (and perhaps from other sources) reach levels so high that incremental loadings can no longer be safely assimilated by the receiving water body.
Charlie: Thanks. The case wasn’t about the merits, because the District Court had ruled that EPA had no authority under any circumstances to withdraw a specification after the permit has issued. It’s been remanded for a decision on the merits. I’ve always thought that the company will have a very difficult time demonstrating that EPA’s withdrawal decision was arbitrary and capricious.