March 27, 2012
A federal court has ruled against the U.S. Environmental Protection Agency (EPA) saying the agency overstepped its authority by revoking a valid wetlands permit from a West Virginia mining operation.
This is a victory for the industry associations that filed a brief in Mingo Logan vs. EPA — which included the American Road & Transportation Builders Association (ARTBA) and the National Stone, Sand & Gravel Association (NSSGA) — all of which urged the court to block EPA’s decision to revoke a valid wetlands permit.
Although the permit in question was for a coal mining operation, ARTBA and NSSGA highlighted in the brief the potential negative effects such action could have on any industry — including transportation construction — that relies on federal wetlands permits.
Specifically, ARTBA warned, “[t]housands of permit holders . . .have been relying on the Army Corps of Engineers’ [wetlands] regulations and predictable processes for decades. If EPA is allowed to change the game, to interfere in the operation of a longstanding permitting system, it will send shockwaves across the country, adversely impacting amici and all the industry participants that they represent.”
In her ruling, Judge Amy Berman Jackson, who was appointed by President Obama, called EPA’s actions both “illogical” and “impractical” and accused the agency of “magical thinking.”
In an amici curiae brief filed in support of the plaintiff after the EPA published a “Final Determination” that suggested a unilateral modification of a Clean Water Act permit that had been issued to Mingo Logan by the U.S. Army Corps of Engineers four years earlier, industry associations unified to fight against the EPA’s “unprecedented” actions.
In the brief, the associations say that for the first time in the nearly 40-year history of Section 404, the EPA is seeking to “veto” the specification of a disposal site after the permit has been issued. They point out that the “the effect of this action is to revoke a permit that has been validly issued by the Corps…Far beyond this specific action, EPA’s assertion that it has the authority to revoke a valid 404 permit will have wide ranging and deleterious effects on all those individuals and entities that rely on 404 permits.”
If EPA’s action had been allowed to stand, the associations note, any project relying on wetland permits would be in danger of losing its permits not because planners had done anything wrong, but simply because the EPA changed its mind.
“Never before had EPA acted against a Corps permit after it was issued,” the associations noted in the brief. “Now, suddenly, EPA is claiming the power to step in and alter the terms of an existing Corps permit any time it determines that the project’s impacts are ‘unacceptable’ — even when the agency had previously reviewed the permit and assented to its issuance, and even when the permit holder is in full compliance. If EPA has this authority to revise or revoke Corps permits after they issue, over the objections of the Corps and the State, Corps permit holders can no longer be sure that their current or future projects are safe from a similar fate.”
There have been three major legal victories in the last 30 days for the industry. The Mingo Logan decision comes on the heels of two major ARTBA Supreme Court decisions in the cases of PPL Montana, LLC v. Montana, and Sackett v. EPA. “In both, the Court reigned in EPA attempts to increase the reach of Clean Water Act regulations, removing road blocks that could have needlessly delayed transportation improvements,” ARTBA says in a written statement.