Two days; two excellent decisions from federal appeals courts.
Last Monday, the 6th U.S. Circuit Court of Appeals ruled in our favor in a case against the U.S Army Corps of Engineers ?and its issuance of streamlined national permits for mountaintop removal operations. The court said the Corps failed to follow Clean Water Act and National Environmental Policy Act requirements prior to issuing such permits.
The next day, the?U.S. Court of Appeals for the District of Columbia ruled that “whenever” actually means “whenever,” finding that the U.S. Environmental Protection Agency has full authority to revoke a valley fill permit from the Corps even after the permit has been issued, as it did when it vetoed the permit issued for Arch Coal’s Spruce No. 1 mine.
The 6th Circuit appeal, which we worked on with our long-time partner Jim Hecker of Public Justice, dealt with whether the Corps adequately considered impacts of past permits when undertaking the required “hard look” at the potential cumulative environmental impact of projects it approved under its streamlined Nationwide 21 permit, and the Corps’ failure to explain how mitigation proposed under those projects would lead to minimal cumulative impacts.
The 6th Circuit panel found that the Corps used past impacts as a predictor of future impacts, rather than assessing the cumulative environmental effects. That, the court said, violated NEPA’s requirement for the agency to “adequately consider and disclose the environmental impacts of its actions.”
The court said it was also troubled by the Corps’ fact-free response to the charge in the lawsuit that it failed to provide analysis or documentation for its determination that compensatory mitigation will help reduce the cumulative impact of the valley fills it approved under NPW 21. The court said of the Corps’ response: “Absent from this discussion is?any mention of the Corps’ factual underpinnings for this determination.”
The court concluded that in order to follow applicable federal regulations, the Corps needed to document “its assessments of environmental impacts and examining past impacts respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CQA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given.”
The arguments in this case are very similar to a pending appeal before the 4th U.S. Circuit Court of Appeals in the Heyland Reylas case, though that case deals with an individual permit rather than a general one. It will be interesting to see if the same reasoning prevails.
Appalmad has a special interest in the Spruce case. Our attorneys have been fighting this 2,300-acre mine since 1998. In 2009, EPA warned the Corps that the permit would lead to irreparable environmental damage and threatened the health of local residents. When the Corps refused to take action, EPA finally vetoed the permit in 2011. Mingo-Logan Coal, the Arch subsidiary that owns the mine, sued.
Last year, a district judge sided with the coal company, in a widely criticized ruling that turned on whether the word “whenever” has any actual meaning. The district judge accused the EPA of engaging in “magical thinking” to conjure up the power to veto a ?permit after it had been issued.
The appeals court, however, had no problem finding the authority clearly and unambiguously spelled out by the law:
Section 404 imposes no temporal limit on the Administrator?s authority to withdraw the Corps?s specification but instead expressly empowers him to prohibit, restrict or withdraw the specification ?whenever? he makes a determination that the statutory ?unacceptable adverse effect? will result. 33 U.S.C. ? 1344(c) (emphasis added). Using the expansive conjunction ?whenever,? the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.
See 20 Oxford English Dictionary 210 (2d ed.1989) (defining ?whenever,? used in ?a qualifying (conditional) clause,? as: ?At whatever time, no matter when.?). Thus, the unambiguous language of subsection 404(c) manifests the Congress?s intent to confer on EPA a broad veto power extending beyond the permit issuance.3 This construction is further buttressed by subsection 404(c)?s authorization of a ?withdrawal? which, as EPA notes, is ?a term of retrospective application.?
This important ruling underscores the fact that, even though the Corps has permitting authority for valley fills under Section 404 of the Clean Water Act, the EPA retains an incredibly strong role in ensuring those permits are properly issued and actually protect the waters of the United States.