Moving mountains: D.C. Circuit deals a blow to mountaintop removal mining

A little over a year ago, after the U.S. District Court for the District of Columbia concluded that EPA had exceeded its statutory authority when it invoked section 404(c) of the Clean Water Act to withdraw the specifications of certain streams as disposal sites for its discharges of dredged or fill material from its mountaintop coal mine in West Virginia, the Mingo Logan Coal Company must have felt the Appalachian equivalent of a Rocky Mountain High.

Early last week, Mingo Logan must have felt as low as the valleys that it is seeking to fill.  On April, 23, 2013, the U.S. Court of Appeals for the D.C. Circuit in Mingo Logan Coal Co. v. EPA, No. 12-5150 (D.C. Cir.), reversed the district court, concluding that EPA has the authority to withdraw disposal site specifications “whenever,” even if “whenever” means, as it did here, four years after the U.S. Army Corps of Engineers issued a permit to Mingo Logan approving its requested disposal sites without EPA objection.

In reaching this conclusion, the Court relied on the plain language of section 404(c), which it found unambiguously expressed the intent of Congress.  That section provides that:

“The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect . . . .”  33 U.S.C. §1344(c).

The Court noted that section 404 “imposes no temporal limit on the Administrator’s authority to withdraw the Corps’ specification but instead expressly empowers him to prohibit, restrict or withdraw the specification ‘whenever‘ he makes a determination that the statutory ‘unacceptable adverse effect’ will result.”  The Court was unmoved by Mingo Logan’s arguments that specification must be withdrawn before the permit issues and that a contrary result would upset the overall scheme of section 404, which generally grants permitting authority to the Corps and otherwise invests permits with certainty and finality.

Because the district court granted summary judgment on the ground that EPA lacks statutory authority to withdraw site specification after a permit has issued, it did not reach Mingo Logan’s alternative ground for challenging EPA’s withdrawal of the specified sites: whether EPA’s decision was arbitrary and capricious in violation of the Administrative Procedure Act.  The D.C. Circuit also was not prepared to resolve that question on the record before it and remanded that issue to the district court to address.

It is unlikely that Mingo Logan’s challenge to the timing of EPA’s decision would fare any better before the U.S. Supreme Court, whose majority often adheres to the principles of strict construction.  For that reason, proving that EPA acted arbitrarily when it concluded that the filling of streams and their tributaries will result in an “unacceptable adverse effect” may represent Mingo Logan’s clearest route back up to the mountain summit.  Better sharpen those crampons.