In a 19-page decision, Judge Reggie Walton granted partial summary judgment to the National Mining Association, which claimed that the EPA overstepped its authority under the Clean Water Act to block the dumping of debris from mountaintop removal projects into local waterways. The decision dismantles an administrative scheme the EPA promulgated in 2009 that gave it more say in the granting of permits for mountaintop mining projects. The EPA used its new rules to impose a “de facto moratorium on permitting for coal mining,” Crowell & Moring argued in the mining group’s July 2010 complaint for declaratory judgment and injunctive relief.
The judge adopted the mining industry’s argument that the EPA unlawfully substituted its judgment for that of the U.S. Army Corps of Engineers, the public works agency responsible for water projects. In passing the Clean Water Act, “Congress established a permitting scheme in which the Corps is to be the principle player, and the EPA is to play a lesser, clearly defined supporting role,” Walton ruled.
Lawyers at Crowell & Moring referred our request for comment to NMA spokesperson Karen Bennett, who was clearly still reveling in Thursday’s ruling. “Shame on the [Obama] administration for saying out of one side of the mouth that its trying to create jobs and then on the other side of the mouth engaging in unlawful acts to wind down an industry that it would like to see bankrupt,” Bennett told the Litigation Daily. “We hope this decision will bolster the Corps to stand up now and take back their program.”
Lawyers from the Department of Justice’s Environment & Natural Resources Division represented the EPA. In a statement, the EPA said: “We will work under the law to meet our clean water act responsibilities to keep Appalachian streams clean for drinking, fishing, and swimming and to assure environmentally responsible coal mining proceeds.” The Sierra Club, which intervened as a defendant in the case along with six local environmental groups, said in a statement that it would “continue to support the EPA in their role protecting U.S. families, waters and local communities, and ensure that those protections become stronger.” The environmental coalition is represented by Jennifer Chavez at Earthjustice.
The NMA has also challenged water purity standards promulgated by the EPA. A hearing on that portion of the industry’s suit is slated for June 2012.