EPA Really Does Have Authority To Withdraw Specifications Under Section 404 of the Clean Water Act

Last year, the D.C. Circuit Court of Appeals ruled that EPA has authority to withdraw its approval for the specification of sites for the disposal of fill material, even after the Army Corps has issued a permit for the discharge under section 404 of the Clean Water Act. Now, Judge Amy Berman Jackson of the District Court for the District of Columbia has ruled that EPA properly exercised that authority with respect to the Spruce No. 1 Mine in West Virginia. spruce mineThe decision, which appears bullet-proof to me, is a ringing endorsement of EPA’s authority in this area.

As an initial matter, it’s worth emphasizing that Judge Jackson originally ruled for Mingo Logan, finding that EPA could not withdraw a specification after the permit issued. Indeed, she could not resist a reminder of her original holding:

The Court is not unsympathetic to the concerns voiced by Mingo Logan, the State of West Virginia, and the amici about the importance of finality in a permitting process, and those concerns, in part, underlay the Court’s determination that EPA’s interpretation of section 404(c) as authorizing it to act after a permit issued was not reasonable at the second level of the analysis set forth in Chevron. But that battle has already been fought and lost, and this Court is not free to take up the issue again.

One has to admire trial court judges who recognize and accept their role in the system.

Mingo Logan made both legal and factual arguments and the Court rejected them all. First, Mingo Logan asserted that EPA could only withdraw a specification after the permit issued if it had “substantial new information” acquired after issuance of the permit. Not so.

Although the Court of Appeals decided only that there is no temporal limit on the exercise of EPA’s veto authority, and it left it to this Court to decide if there is some substantive limit, the emphasis the court placed on “Congress’s intent to confer on EPA a broad veto power,” sends a strong message here.

Next, Mingo Logan argued that EPA’s finding that the specifications would cause “unacceptable adverse impacts” was arbitrary and capricious. Noting that the deference always due agency decisions is heightened when “an agency’s action relies on scientific and technical information touching upon the agency’s area of expertise,” the Court had no difficulty affirming EPA’s decision.

Finally, it’s worth noting that the Court also affirmed EPA’s authority to withdraw specifications based on the impact of the disposal downstream of the actual disposal location, even if those impacts would occur downstream of detention basins which were subject to a separate permitting process under section 402 of the CWA. The existence of the Section 402 permit did not insulate the downstream impacts from EPA’s authority under section 404.

Not a good day for mountaintop mining.

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