An appeals judge is forcing the U.S. EPA to make a decision on whether to force the West Virginia Department of Environmental Protection to uphold Clean Water Act standards.
Federal judge Robert Chambers ordered the EPA in February to make a decision about whether to force the WVDEP to comply with Clean Water Act provisions, but the EPA appealed the decision, asking for a stay.
A three-judge panel voted to deny the motion for stay pending appeal two to one, according to a document filed May 30 by the United States Court of Appeals for the 4th Circuit.
"It's very good news for the streams of West Virginia," Peter Morgan, senior attorney at Sierra Club - one of the environmental groups trying to force the EPA to take action, told S&P Global Market Intelligence.
The vote is related to the WVDEP looking to find a new way to measure biological impairment, often due to coal mining, of its streams in accordance with state legislation in 2012. In February of this year, Chambers said that the WVDEP has not been working on a new metric at all since then, and the enforcement of the CWA has essentially been on pause in the interim. Chambers said that a state law cannot be the justification for not following a federal law.
Sierra Club, along with Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and West Virginia Rivers Coalition argued that WVDEP should not be able to stop enforcing pollution standards while it developed a new way to measure them.
"In the interim you can't do nothing. You have to continue to meet your responsibilities under the Clean Water Act," Morgan said.
Now that the appellate court has denied the motion for stay pending appeal, EPA will have to decide whether to approve or disapprove of WVDEP's lack of enforcing pollution limits.
If the federal agency approves the lack of enforcement, Morgan said that Sierra Club can challenge them in court based on the science they used. If the EPA disapproves their standard, then it must create its own standards of how much pollution coal mines can release into waterways.
In the past few days a federal judge also sided with environmental groups in an individual pollution case involving Fola Coal Co. LLC in the state.
The U.S. EPA could not be reached for comment on the court's decision.