July 23, 2013

EPA abuse on display . . . again!

By M. Reed Hopper Senior Attorney

The old canard that all’s fair in love and war appears to be driving EPA policy.  This agency has declared “war” on coal mining and is not playing fair.  Among other things, coal mines are required to obtain certain discharge permits from the Corps of Engineers.  The process for submitting, reviewing and approving these permits was established long ago in official rules approved by the Corps and EPA.  In accordance with the mandates of the Clean Water Act, this process requires the Corps to make any permit decisions based on approved discharge standards.  However, EPA decided to change the rules …unofficially.  Without going through the formal rulemaking procedures required by law, EPA changed the way coal mining permits are reviewed and approved.  Instead of the Corps, EPA now controls the permitting process for coal mining through a prescreening review wherein the EPA imposes its own, unapproved discharge standards that are designed to stymie coal mining operations.  According to EPA officials, this “new process” will virtually ensure that coal mining permits are not approved.

Fortunately, in a case called National Mining Association v. Perciasepe, a federal trial court saw through the EPA’s gambit to subvert the law and ruled EPA had overstepped its authority.  Never content with limits on its power, EPA appealed the case to the D.C. Circuit Court of Appeals.  Yesterday, PLF joined a number of industry groups in opposing the EPA’s arrogation of authority.  Our joint amicus brief can be found here.  A separate amicus brief was filed on our side  by eleven states from Alaska to Virginia and can be found here.  A decision in the case is likely by the end of the year.

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