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Supreme Court Declines to Hear EPA Permit Veto Rule

2013-05-20_1611

This week the Supreme Court declined to consider an appeal brought to them when a lower court rejected Arch Coal’s case against the EPA:

The U.S. Supreme Court on Monday declined to review whether the Environmental Protection Agency exceeded its powers when it retroactively withdrew parts of a permit for a large mountaintop coal mine, a victory for the Obama administration and environmental groups.

The high court’s announcement, in a one-line order, is a setback for coal producer Arch Coal Inc., which was seeking to restore a Clean Water Act permit it secured in 2007 from the U.S. Army Corps of Engineers for the Spruce No. 1 Mine in West Virginia.

Mining operators often need such permits to dump rock and soil into surrounding watersheds, under a practice where surface land is scraped away to access underground coal seams.

The EPA under the Obama administration in 2009 began efforts to modify or suspend the Spruce Mine permit, saying new information showed that dumping mining waste would impose unacceptable harm on water quality and wildlife.

For the backstory, the Army Corp of Engineers granted a permit for the Spruce mine in 2007 under the Bush administration. This was after a long and exhaustive process which the EPA was involved in to ensure that the mine would not have unacceptable environmental consequences.

However, under the Obama Administration — likely bowing to the demands of environmental activists –the EPA suddenly decided that the mine was no longer a good idea. It then chose, over 2 years after the permit was originally issued, to revoke the permit issues by the Army Corp of Engineers.

Allowing the EPA to suddenly decide to revoke a permit that had long been granted sets a dangerous precedent. Businesses go through the permitting process to ensure these types of things do not happen. They follow the law and only then begin to invest money with the presumed certainty that the legal framework they are operating under will not suddenly change, making their investments worthless.

It is unfortunate that the Supreme Court declined to review this case. While the EPA’s authority to revoke permits appears to have been cemented, Arch Coal will continue with an appeal to contest the evidence the EPA has presented to revoke the permit.

 

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