Cross-posted at Forbes.com’s WLF contributor site
Navigating the environmental permitting gauntlet requires substantial time and financial resources. So once you obtain a permit, you should be able to rely on it, and shouldn’t have to worry about a federal agency coming along and conjuring up a way to make it disappear.
In the past year, coal companies and several states have accused the Environmental Protection Agency (EPA) of such regulatory alchemy in two separate lawsuits. Much to the chagrin of environmental activists, neither presiding judge bowed down to EPA’s expertise nor gave deference to its sweeping assertion of authority.
EPA has already signaled its intention to appeal one loss, Mingo Logan Coal Co. v. EPA. The Clean Water Act (CWA) authorizes the Army Corps of Engineers to issue water discharge permits, while also giving EPA advisory authority as well as the ability to “veto” a permit by prohibiting the Corps from specifying a designed area as a disposal site. Mingo obtained a permit from the Corps in 2007 related to mountaintop mining in West Virginia. In September 2009, EPA asked the Corps to suspend Mingo’s permit. After the Corps refused, EPA took an unprecedented step: it retroactively prohibited the Corps from designating two mountain streams as disposal sites. The move shut down a mining project which employed 250 workers and which was in full compliance with the permit. Continue reading “Judges Rule That EPA Can’t Conjure Up New Permit Veto Authority”