Construction industry officials are hopeful that the U.S. Supreme Court will agree to hear a case that centers on the Environmental Protection Agency's authority to withdraw a construction permit issued by another federal agency.
The case focuses on EPA’s decision to revoke a 2007 Army Corps of Engineers permit granted to Mingo Logan Coal Co. to discharge and fill material from a West Virginia coal mine into local streams. In withdrawing the permit, EPA said that after extensive scientific study, a public hearing and a review of more than 50,000 public comments, it believed that the mining permit would result in “unacceptable adverse effects to fish and wildlife resources.”
The matter moved to the courts. The most recent development came on April 23, when the U.S. Court of Appeals for the D.C. Circuit ruled against Mingo Logan Coal. The court stated that the “plain language” of the Clean Water Act gave EPA the authority to revoke the permit.
The coal company, based in Wharncliffe, W. Va., filed a petition on Nov. 13 asking the Supreme Court to reverse the appellate court's decision.
The high court is expected to make a decision before the end of its current term whether it will hear the Mingo Logan Coal case in the term that begins in October 2014.
Associated General Contractors of America General Counsel Mike Kennedy says his group is “concerned about EPA’s claim that it has the authority to withdraw a wetlands permit after a construction project has already begun—a valid, on-the-table permit EPA now claims the authority to withdraw at any time.” The case is “an extraordinarily important case to the construction industry,” Kennedy says.
Kim Link, a spokeswoman for St. Louis-based Arch Coal, which is Mingo Logan's parent company, says that the permitting process for the Spruce No. 1 Mine project took 13 years and included a full environmental impact statement—“the only permit in the eastern coal fields to ever undergo such review.” Link says, “The Spruce permit is the most scrutinized and fully considered permit in West Virginia’s history. “
The National Association of Home Builders also hopes that the high court will decide to hear the case.
But Jennifer Chavez, a staff attorney with Earthjustice, an environmental organization, says that the Clean Water Act gives EPA the authority to withdraw permits when it is clear that the work will result in harm to an affected water body. “EPA as the primary administrator of the Clean Water Act has the power to protect our waters, and that power can’t even be cut off if the Corps decides to issue a fill permit,” Chavez says.
Chavez adds that she thinks that the Supreme Court may decline to hear the case based on her reading of the appellate court's ruling. “I don’t see any issue worthy of Supreme Court review,“ she says. The D.C. appeals court ruling focused on the “plain meaning of words [and] it was unremarkable” from a legal perspective, Chavez says.
