The U.S. Supreme Court has declined to review a harmful decision from the U.S. Court of Appeals for the D.C. Circuit, issued in April 2013 in Mingo Logan Coal Co. v. EPA, which says the Clean Water Act (CWA) grants the U.S. Environmental Protection Agency (EPA) the “veto” power to withdraw a Section 404 dredge-and-fill permit several years after it has been duly issued by the U.S. Army Corps of Engineers (Corps) and relied upon by the permittee.
The idea that EPA has unbounded authority to retroactively revoke or modify permits already approved by the Corps, which has the job of issuing CWA Section 404 permits, sparked considerable concern and action from a broad array of industry groups, including AGC. Specifically, the D.C. Circuit said the clear language of CWA Section 404(c) gives EPA the authority to withdraw permit specifications whenever it determines discharges will result in unacceptable adverse effects (emphasis added). In a bid to reverse the D.C. Circuit’s decision, late last year, AGC joined with the National Association of Manufacturers, the American Society of Civil Engineers, the American Council of Engineering Companies and several other trade associations in filing a friend-of-the-court (amicus) brief with the U.S. Supreme Court, urging it to review the D.C. Circuit’s ruling in the Mingo Logan case. Twelve additional amicus briefs were filed in support of Supreme Court review, including a brief from the state of West Virginia which was joined by twenty-six states.
The Supreme Court’s recent order denying certiorari leaves intact EPA’s post-permit veto authority.
The case will now return to the U.S. District Court in Washington, D.C. to resolve whether EPA’s withdrawal of certain specified disposal sites from the environmental permit issued for Spruce No. 1 mountaintop coal mine in West Virginia was arbitrary and capricious under the Administrative Procedure Act. The coal company is due to argue that EPA failed to follow the correct legal process when it made the decision to veto the project.
Although EPA has used its Section 404(c) veto authority sparingly in the past, having challenged projects under consideration by the Army Corps in only about 15 cases to date, recent actions indicate EPA may be seeking to expand its Section 404(c) role. First, the decision in Mingo Logan to retroactively nullify a Corps permit several years after it was issued represents the first time the agency had ever blocked a project after the permit was approved. Second, EPA recently issued a decision that it intends to initiate the 404(c) veto process for the Pebble Mine project in Alaska, even before a 404 permit application was filed for that project. (See Letter of EPA Regional Administrator to Thomas Collier, et. al., Feb. 28, 2014). Third, EPA recently issued a notice of proposed rulemaking looking to expand which water features are subject to federal jurisdiction, and thus the number of potential projects that must obtain Section 404 permits. Together, these actions may indicate that EPA is looking to expand its veto authority under the CWA to allow it to act both preemptively before an application is filed, and retroactively, after a final permit has been issued. This disrupts the finality and certainty of the CWA Section 404 permit process, which could hinder investment to meet the nation’s growing infrastructure needs and other development projects that require 404 permits.
For more information, please contact Leah Pilconis, Senior Environmental Advisor to AGC, at pilconisl@agc.org.