Today the D.C. Circuit Court of Appeals sided with EPA’s interpretation of the Clean Water Act’s Section 404 permit veto authority. The Court ruled that EPA has the power to revoke dredge-and-fill disposal site specifications even after the permit has been issued: something it has never done before in its 40-year history. The case, Mingo Logan v. EPA, was on appeal from a district court ruling that held EPA was restricted from reaching back and vetoing permits that it had already green-lighted.
Here’s a quick recap of the issue from AFP’s post on the lower court ruling:
“A mining company in West Virginia worked for ten years with the state, EPA and the Army Corp of Engineers to get a Clean Water Act permit for its Spruce Mine project. In 2007, the Army Corp issued the final permit allowing the company to move earth that was leftover after mining into an adjacent valley. Once President Obama got elected and control of the EPA changed hands, the agency issued a letter in 2011 attempting to revoke the permit, an unprecedented move under the Clean Water Act.
“On March 23, , the D.C. District Court blocked EPA’s attempt as beyond its power and in clear violation of Congress’s intent that, barring new information, permits under the Clean Water Act are final so that employers and workers can have some level of certainty regarding regulatory compliance. The district court judge wrote, ‘EPA resorts to magical thinking’ by purporting to have the power to compel ‘automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof! … [This leaves] permittees in the untenable position of being unable to rely upon the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.’”
Today’s D.C. Circuit Court of Appeals ruling states that the language of 404(c) is clear in that it allows EPA to withdraw dredge-and-fill disposal site specifications “whenever” the EPA determines that the activity will have “unacceptable adverse effect” on the environment, including after the permit has been issued. With what must be a touch of sarcasm, the Court also wrote that “the permit itself remains otherwise in effect to the extent it is useable.”
This ruling essentially opens the door for EPA to yank permits “whenever” they want to. What’s really at issue here is that the Spruce Mine got its permit under the Bush EPA and the Obama EPA did not agree. This ruling sets up a structure under which businesses, workers, communities and investors are on notice that EPA permit decisions under one administration are not necessarily going to be upheld under the next. This injects further uncertainty into business decisions. Even if you get a permit and invest millions of dollars and years into a project, the project can be pulled at any time when control of EPA changes hands: Poof!