Court Rules that EPA Can Veto Mountaintop Removal Permits

By Nick Cunningham

mountaintop removal site (photo: Library of Congress)

Big environmental news this week - On April 23, the U.S. Court of Appeals for the District of Columbia ruled that the EPA has the authority to veto mining permits for mountaintop removal, a significant win for the environment. The ruling overturned a 2012 District Court decision that declared the EPA did not have the statutory authority to do so.

Let's back up. As discussed previously on this blog, one particularly nasty way of mining coal is through mountaintop removal. This is where you blow up a mountain to gain access to the coal seams beneath. When you destroy a mountain, there is a lot of left over dirt, mining waste, chemicals, etc., and you have to put that stuff somewhere. Coal companies like to dump it in nearby ravines, creeks and rivers, I suppose because that's the easiest thing to do. In order to do that, under the Clean Water Act, coal companies must first get a permit from the Army Corps of Engineers. 

Back in the late 1990's, a subsidiary of Arch Coal, a major mining company, planned to expand an existing mountaintop removal site, called the "Spruce No. 1." The expansion would be truly massive - 3,113 acres - the largest mountaintop removal site ever. It was subsequently scaled down a bit in a compromise, but would still be an enormous project. For this reason, it became a focal point for environmental and local activists. In 2007, the Army Corps of Engineers issued the permit that allowed the company to "fill" in rivers and creeks near the mine - effectively green lighting the mine. 

In 2011, the EPA revoked the permit, a historic move, using its authority under the Clean Water Act. This made the mining industry and Republicans in Congress apoplectic. Arch Coal appealed, and in March 2012, the U.S. District Court struck down EPA's decision, stating that EPA did not have such authority.

Which brings us back to the present. EPA appealed that decision, sending it to the higher U.S. Court of Appeals. The Appeals Court decided on April 23, that yes, the Clean Water Act "does indeed clearly and unambiguously give EPA the power to act post-permit." In other words, if the Army Corps of Engineers issues a permit that is going to lead to the destruction of rivers, streams, and mountain sides, the EPA can overrule them and veto the permit. 

It is hard to overemphasize the importance of this ruling. The Army Corps of Engineers has consistently failed to protect the environment. Over the years it has issued permit after permit, allowing the decimation of Appalachia to proliferate. Whether willfully colluding with industry or simply not having the resources to adequately assess the damage (there is much evidence for the former), it is important for the EPA to have policing power over such a destructive practice.

The industry predictably issued trite statements about the loss of jobs and "uncertainty." But, there is nothing redeeming about mountaintop removal. It actually provides very few jobs - it requires just a bunch of machines and explosives. And without that good, you are just left with the bad - it destroys mountains, deforests vast swaths of forest, buries streams, and contaminates local water supplies. All to get a product that, when burned, fouls the environment once again and is a leading driver of global climate change. If the recent court ruling leads to more coal being left in the ground, then it is indeed a big win - not just for the global and local environment, but for the people living in Appalachian communities as well.