As the lawyers among our readers know, the denial of a certiorari petition does not establish precedent. However, that doesn’t make it unimportant. Yesterday, the Supreme Court denied cert. in Mingo Logan Coal Co. v. EPA. The cert. denial leaves in place the decision by the D.C. Circuit Court of Appeals holding that EPA has authority retroactively to withdraw a site specification for a Clean Water Act § 404 permit issued by the Army Corps of Engineers. As Hal Quinn, President and CEO of the National Mining Association said in response, this leaves a “cloud of uncertainty” over mining projects, even after they receive a § 404 permit.
I don’t expect EPA to rush out and use this authority willy-nilly, but the agency will use it and the possibility of a retroactive withdrawal of a specification could certainly have a chilling impact on mining operations.
Nonetheless, as I noted following the D.C. Circuit opinion, coal companies better get used to it. 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….
Given the use of the words “withdrawal” and “whenever”, neither the original Circuit Court opinion nor the denial of cert. was surprising. As I also noted then, the conservative wing of the Supreme Court likes plain meaning interpretations, and this one was pretty plain.
I don’t think many coal mining participants will find this “chilling”, because of the burden of proof placed on EPA at the end of the sentence, i.e., EPA must determine that … ” the discharge will (not “may”) have an unacceptable adverse effect”. In my experience, the industry knows up front that no project can be expected to continue following such a determination.