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Court affirms EPA's veto of permit for Arch's mountaintop removal coal mine

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Court affirms EPA's veto of permit for Arch's mountaintop removal coal mine

A federal appeals court has again a lower court's decision touphold the U.S. EPA's decision to reject a mountaintop removal coal minepermit that wouldhave allowed one of the largest surface mines in West Virginia.

A split panel of the U.S. Court of Appeals for the D.C.Circuit said in an opinion filed July 19 that the EPA did not violate the AdministrativeProcedure Act, or APA, in rejecting a permit four years after it was originallyapproved by the U.S. Army Corps of Engineers in 2007 for 's Spruce No. 1 mine.Mingo Logan Coal Co.,an Arch subsidiary, initially challenged the EPA's authority to "retroactivelyveto" a permit. Though it achieved some success early in a lower court,the appeals court sided with the EPA and the U.S. Supreme Court to review the case.

"[T]he company arguesthat the EPA failed to engage in reasoned decision making by ignoring MingoLogan's reliance on the initial permit, impermissibly considering the effectsof downstream water quality and failing to explain adequately why the project'senvironmental effects were so unacceptable as to justify withdrawal," theopinion written by Judge Karen Henderson states. "We conclude that the EPAdid not violate theAPA in withdrawing specification of certain disposal areas from the permit;rather, it considered the relevant factors and adequately explained itsdecision."

Arch spokesperson Logan Bonacorsi said the company wasdisappointed by the court's decision, which it said would increase the level ofuncertainty for anyone operating in an industry that needs similar permits.Bonacorsi added the company will evaluate potential next steps with respect tothe permit.

"Theagency's ability to retroactively revoke a lawfully issued permit will almostcertainly prolong an already lengthy and complicated permitting process andwill also work to discourage future U.S. investment and much needed jobcreation," Bonacorsi said.

The judges wrote that EPA's withdrawal of the permit was a "productof its broad veto authority" provided under the Clean Water Act. Theopinion emphasized that the court does not hold that the EPA is generallyexempt from considering costs in evaluating whether to withdraw a previouslyapproved permit.

"Finally, we note that post-permit withdrawal undersection 404(c) [of the Clean Water Act] is a mighty power and its exercise willperhaps inevitably leave a permittee feeling as if the rug has been pulled outfrom under it," the judges siding with the EPA said. "Nonetheless,this power is one the Congress has authorized the EPA to exercise and where, ashere, the EPA has adequately explained why mine spoil disposal at two siteswould cause 'unacceptable adverse effect[s]' on 'wildlife,' we must uphold itsdecision."

A coalition of environmentalists applauded the ruling in ajoint press release July 19.

"Thisruling closes the final chapter on the devastation mountaintop removal miningwould cause at the Spruce site," said Emma Cheuse, an attorneywith Earthjustice. "The court'saffirmation of EPA's expert scientific decision to prevent unacceptableenvironmental harm gives West Virginia communities essential and much-neededprotection for local waterways, mountains, and a sustainable way of life thatdoesn't depend on blowing up mountains, and we will continue calling on EPA todo more to protect communities."

A dissenting opinion was written by Judge Brett Kavanaugh.He wrote that EPA's "utterly one-sided analysis did not come close tosatisfying" its duties.

"The Corps issued a 24-year permit to Mingo Logan, butEPA then revoked the permit four years later," Kavanaugh wrote. "Inrevoking the permit, EPA considered the benefits to , but none of the to humans. Because thatcost-blind approach does not satisfy EPA's duty of reasoned decision-making,and because Mingo Logan adequately raised that issue, I would direct theDistrict Court to vacate EPA's revocation decision and to remand to EPA for theagency to consider the benefits and costs of its proposed revocation, and tosupply a 'more detailed justification' for revoking the permit."

Arch is currently in the process of a bankruptcyreorganization.