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Federal Appeals Judge Scraps EPA Veto, Agrees with NAR on Mountaintop Coal Mine

April 9, 2012

April 9, 2012

U.S. EPA overstepped its authority when it vetoed a Clean Water Act permit issued for a sprawling mountaintop-removal coal mining project in West Virginia, a federal judge ruled today. At issue is EPA's veto last year of the "dredge and fill" permit issued by the Army Corps of Engineers in 2007 for Arch Coal Inc.'s Spruce No. 1 mine in Logan County. It was the 13th time that EPA had used its veto power under Section 404 of the 1972 Clean Water Act, but it was the first permit blocked retroactively. The agency argued it needed to act to protect waterways from debris generated by the massive mountaintop project.

NAR and several other regulated stakeholder associations wrote an amicus brief to the Court supporting the contention that EPA did not have authority to veto a permit previously issued by the Army Corps of Engineers and reviewed by EPA.

But U.S. District Court Judge Amy Berman Jackson for the District of Columbia ruled that EPA did not have the power to scrap a permit that the Army Corps had already issued. "Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps," Berman Jackson wrote in a 34-page opinion.