DC Court Confirms EPA May Reverse Its Position On Permit Issuance

In the latest installment in this long-running dispute, the U.S. Court of Appeals for the DC Circuit today, in Mingo Logan Coal Company v. EPA, ruled, in a 2 to 1 decision, that EPA satisfied its duties under the Clean Water Act (CWA) and Administrative Procedures Act (APA) when it vetoed a 404 dredge and fill permit Mingo Logan Coal Co. received from the U.S. Army Corps of Engineers (Corps) in 2007 with the concurrence of EPA, only to have EPA exercise its veto power in 2011. Mingo Logan also received a 402 permit from the State of West Virginia pursuant to its delegated authority. The dispute has been the subject of two district court rulings and now two DC Circuit Court of Appeals rulings.

Judge Henderson ruled that Mingo Logan’s argument that EPA was obliged to consider the costs of its action was forfeited because this argument was not effectively made with EPA and the district court. In addition, it confirmed that EPA was under no special obligation to justify its reversal, and that such Supreme Court cases as FCC v. Fox Television Stations, Inc. had no bearing on this issue. EPA previously held, and the Court of Appeals agreed, that post-permit data on the effects of downstream pollution could be weighed by EPA in deciding whether to exercise its veto authority, which is not subject to any temporal limits by law.

Judge Kavanaugh filed a very strong dissent, making the case that Mingo Logan had preserved its economic argument, and EPA was under an obligation to consider the costs of its actions, especially when the permit applicant, on the basis of the initial permitting decision, invested substantial sums of money and hired coal miners. These “reliance interests” should have been considered by EPA, which argued that it was under no duty to do so. Judge Kavanaugh closed by stating that, [I]In revoking the permit, EPA considered the benefits to animals, but none of the costs to humans.”

Several CWA and APA issues were discussed by the Court of Appeals, and it will be interesting to see if further appeals are made.