WASHINGTON, D.C., – The U.S. Supreme Court has refused to take up the case involving the Spruce Mine permit and the federal EPA.

Twenty-seven state attorneys general wanted the High Court to hear whether the EPA has authority to veto a Clean Water Act permit after it has already been granted.

“It is always very difficult to get a case heard by the U.S. Supreme Court. However, the decision in this case is disappointing,” West Virginia Attorney General Patrick Morrisey said. “The EPA’s decision to rescind a permit years after it was granted to Mingo Logan Coal Co.’s Spruce Mine negatively impacted West Virginia jobs, families and the state as a whole.”

Arch Coal, the parent company of Mingo Logan Coal, continues to appeal the EPA’s decision.

“The case will return to the (U.S.) district court for a ruling on the merits,” Arch said in a statement to MetroNews Monday.

The National Mining Association had a similar reaction.

“It’s obviously disappointing, but now the district court will hear the case on the merits. The fat lady hasn’t sung yet,” NMA spokesman Luke Popovich said.

Attorney General Morrisey said the case was more than about coal.

“It’s about private and public entities being able to have faith that when they make investments and get the necessary permits for those investments, those permits won’t be yanked back years later,” Morrisey said.

Arch Coal sued the EPA’s decision to take back the permit for mountaintop removal mining in Logan County after it had been approved by the U.S. Army Corps of Engineers. A federal judge threw out the EPA’s veto in 2012. However, in April 2013 the U.S. Court of Appeals in the District of Columbia upheld the EPA’s authority.

The environmental community applauded Monday’s decision. Ohio Valley Environmental Coalition Project Coordinator Vivian Stockman called it a gratifying outcome for water drinkers everywhere.

“The Court agrees that Congress gave EPA the authority to protect our waters from devastating harm, harm the proposed massive Spruce mountaintop removal mine would wreak if its permit was not vetoed,” Stockman said in a prepared statement. “By protecting clean water, EPA is ultimately protecting human health, and as recent events have underscored, here in central West Virginia we cannot depend on the coal industry, nor state government to protect human health by protecting clean water. We need EPA to be able to keep a check on things.”

West Virginia Coal Association President Bill Raney says Arch Coal still has a mountaintop removal operation at Spruce but nowhere near what it had planned. Raney said he’s disappointed but hopefully the case will get some traction in the Washington, D.C. circuit of U.S. District Court.

“You hate to go back to the same court that ruled against you first, but that’s what they say we’ve got to do,” Raney said. “They’ll do it with a lot of aggressiveness, energy and passion.”

 

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Comments

  • John Stanley

    Can you be a friend to coal & a opponent of mt.top mining ? Over 90% of coal miners hate what Mt. top Mining is doing to the mountain's they love to call home! Sacred land's in which gave life to the very miner who will now sacrifice it for a temporary job that only feed's approx. 12 to 14 families for a very short time ! I was born to a family in the coal business , I have worked on strip mine's & owned Coal trucks . It is time to support coal without destroying our mountain's in Almost Heaven WV , PS put it to a vote for the people of wv to decide & be happy with the result ?

    • Sick&Tired

      I'd like to know where you live, John. Because I live right in the middle of coal country and while they're a few deep miners who oppose surface mining not close to 90%.I've worked on a surface mine the last 18 yrs. you might say that's a short time my family wouldn't agree.I can also tell you at the present time we're training 40 deep miners because this administration doesn't care were the coal comes from,and by the way 90 % of them are loving it saying they hope they never have to go back.

  • MOCO man

    I'm glad they stopped it!!! As a former coal miner, I am all for underground mining but totally against removing the top of every mountain in the state. If people want to live in a flat state move to Kansas. I know a lot of the mountain top removers don't have what it takes to be a real coal miner as long as they can sit in a dump truck and listen to their radio all day.........I enjoyed my time underground but am so glad I found a more stable, better paying job......

  • wv4ever

    One last thing, look at the beautiful mountain the the lead story picture. I bet not a single wild animal, bird, insect, plant or stream, creek or pool of water was harmed in any way by the simple change in the landscape. I wish I had a mountain cabin just under the rim of that strip mine to enjoy the beautiful earth that God has entrusted to us.

    • cutty77

      All The Tree Huggers wouldn't know what a Mountain was if it bit the Rear End.

  • Chef Camille

    I think Obama should give everyone a tax credit to put a windmill on your property. Would that not be great we produce our own power through wind. Everyone in the neighborhood (Would you be mine...) would have a 30' windmill in your back or front yard. OOPS we can't do that because of zoning laws. Oh well we will get the Fed's to overrule local zoning. But wait we can't put them up because they kill birds. Wait the EPA will grant exceptions. It's that simple. Warren Buffet and George Soros will own all the windmill companies and everything will be good again.

  • whatamoroon

    Political favors are as old as the constitution itself. If you don't like what is happening to coal, then make sure you never vote for another liberal democrat, period.

    • J the C

      If you don't like what Repugnants are doing to the environment, don't ever vote for another one.

  • RB

    Wait to the rolling blackouts start happening in the very near distant future. Then will see how bad coal was.

  • Aaron

    The facts in this case are fairly simple. First, the EPA does not have the authority to grant the permit. The Army Corps of Engineers is the responsible agency for granting CAW 404 permits. In this case, beginning in with the initial proposal of the mining site, first Hobet Mining and then Arch Mining worked with all agencies including the US Environmental Protection Agency (USEPA), The Army Corps of Engineers (ACE) and the WV Department of Environmental Protection (WVDEP) on this permit. For 10 years, the Spruce Mine was subjected to the most intense environmental impact study (EIS) in the history of United States permitting. Mingo Logan coal negotiated, worked with and modified various permits more than a dozen times and in that time, reduced the size and the scope of mining site by 25% as well as the number of valley fills and streams impacted.

    In January, 2007 after years of scrutiny in which the USEPA was involved every step of the way and halted permitting twice over EIS concerns, USACE finally issued a CWA Section 404 permit authorizing the fill of discharge of fill material from the site to Mingo-Logan mining. Immediately after issuance of the permit, environment groups sued to halt the permit. Mingo Logan negotiated with the groups and with USEPA, WVDEP and USACE to undertake limited operations at the site while the suit worked its way through the courts.

    It wasn't until September, 2009 that the EPA wrote the ACE a letter citing "new evidence" requesting the ACE revoke the permit. When the ACE determined the information regarding "elevated conductivity that would negatively affect healthy aquatic communities" cited by EPA was not new and refused to revoke the lawfully issued permit.

    After that happened in September, 2009 Department of Justice Lawyers "demonstrated a renewed interest in Mountain Top Removal and intervened on behalf of the Obama Administrations" to petition Judge Robert Chambers to "advise " ACE to readdress the permit. Chambers agreed with the EPA.

    While Judge Chambers was considering the EPA challenge, ACE reviewed EPA’s four main concerns from their challenge; “fill minimization, water quality excursions and significant degradation, cumulative impacts, and compensatory mitigation concerns” and determined "“no additional evaluation of the project’s effects on the environment are warranted, the permit will not be suspended, modified, or revoked, and a supplemental EIS will not be prepared.”

    Judge Chambers granted EPA various stays while making no rulings but effectively halted production at the site. He granted a final stay in 2010 and advised EPA to make a final determination. EPA effectively vetoed the permit but since then, 2 separate judges have ruled that the EPA "may be exceeding their authority" but neither ruled on the merits of the case. Their rulings were immediately appealed to higher courts.

    That is where we are. The Supreme Court has refused to rule on whether the EPA has overstepped their bounds (a gutless decision in my opinion) so the case will now go back to district court where the merits of the case will be ruled on. At that point, I’m sure whatever decision the court reaches will immediately be appealed by the losing side and then we will wait another 4 or 5 year for the Court to decide whether they are going to hear the case or not.

    In the meantime, no permit is safe regardless of whether it was lawfully issued or not. If you have a business license, it doesn’t matter. If someone, somewhere in government decides they want to revoke your permit, they now have the authority to do so. That is the result of this action and regardless of how you feel about coal mining or mountain top mining, if granting that government that much unlimited authority does not scare the he** out of you, then you have no respect for our nation of laws based upon out Constitution.

    It really is that simple.

    • Hillboy

      Aaron, you write, "First, the EPA does not have the authority to grant the permit. The Army Corps of Engineers is the responsible agency for granting CAW 404 permits."

      That is true enough. ACE has the authority to grant the 404 permits. However, EPA has the authority to veto them. It's written into the Clean Water Act so it's not unconstitutional. The EPA rarely does it but it has been done 12 other times and has not been overturned yet.

      • The bookman

        And the EPA worked along with the ACE during the permitting process, raised their concerns, and the resulting permit reflected those concerns as they were satisfactorily addressed by the industry. It was only after the election that they decided to revisit the permit and upon judicial request to make a determination. They vetoed the approved permit, 3 years after it was approved to move forward. Elections do have consequences, and what you accept as appropriate action by this administration would be admonished by you if you were on the other side of the issue.

        Going back to a previous administration and undoing a lawful permit after the wheels of machinery have begun to turn is an effort to undermine the election of 2004. So, do they or do they not have consequences?

        • Hillboy

          Are you saying that the permit was rescinded after mining had been taking place for three years? Because that is clearly not the case. That permit was hung up by legal challenges so a veto at that time would have been at best symbolic.

          Yes Bookman, there have been changes made by past presidents that bothered me as much as this bothers you so I do know how you feel.

      • Aaron

        Yes they do. And they did not do that at any time between 1997 and 2007 when the permit was lawfully issued.

        This nation operates under a rule of law in which it takes either an act of Congress revoke or repeal a law or an Appellate Court to strike a law down as unconstitutional.

        The EPA waited 2 years and 8 months before the decided to veto the permit, AFTER it was LAWFULLY issued.

        Are you OK with that sequence?

        • Hillboy

          I am OK with that. This mine as originally proposed would have covered almost 5 square miles. I think it was appropriate that the application be scrutinized. The permit was under litigation so it is not like mining was taking place for 2 years and 8 months.

          • Aaron

            When the federal government granted itself unlimited power under the Patriot Act, that scared the bejesus out of me.

            I knew that sooner or later, we would get to the point of our government doing what they have been doing for the past decade. I said then, absolute power corrupts absolutely.

            I was right then.

            I am now. Just as no phone conversation is safe from prying eyes and ears, no permit is safe from the EPA.

        • J the C

          What is the "very near distant future"?

          • Aaron

            I'm not sure who you are talking to.

  • TW EAGLE

    I doubt that the epa just woke up one morning and decided they didn't like the work being done by mingo logan coal co. . . .

    what were the particulars , the underlying reasons for the granting of the permit , and what were the limits (work rules) that mingo logan coal was to follow . . . did runoff from the site (pollution of fresh water) cause the epa to act ? it must have been an extraordinary breach of permit protocol to have the permit revoked . . . I'd think a "time out" - limited work cessation to iron out concerns that the epa might have over how mingo logan was operating the site . . .

    • JustaFan

      "I doubt that the epa just woke up one morning and decided they didn't like the work being done by mingo logan coal co. "

      Yes they did. Obama was elected, new leadership was appointed--leadership that hates coal.

      • Sick&Tired

        +1

  • C. F. T.

    Is the yea or ney vote by an individual Justice at both the Supream and Appeals Court known? Reason for asking, such disclosure would isolate the President who appointed the Justice and did or did not Senitor Rockie, Manchin and/or Byrd vote for the Justice.

    • Walsingham

      Each Justice reads appeals court cases for a certain circuit of the country and then they decide if the court will hear the case. My understanding is that Roberts hears fourth circuit cases.

  • Jeff

    The real problem is there's an actual rubber stamping process to blow up mountains.

    • Aaron

      Another one.

      earthmagazine.org/sites/earthmagazine.org/files/1324689359/i-69-7d8-9-2.jpg

      • Jeff

        Wowee! Blow up a mountain, destroy habitat, pollute the air, pollute the water, and all the coal company has to do is throw down some asphalt for a random runway in the middle of nowhere. What a farce.

        • Aaron

          I'm curious, have you been to Pikeville, KY? If they didn't place the airport on a former MTR site, where would you propose they put it?

          And on that note, have you been around Yeager lately and witnessed all the dirt that is being moved to flatten the land? What is that called?

          • Aaron

            Leveling the top of mountains and moving the dirt into valley fills WITHOUT removing coal. My bad. Now I see the difference.

            I guess the 38 hill tops pushed over into adjoining valleys to create a 20 mile stretch of road isn't Mountain top mining either, huh. Or that travesty at the junction of 73 and 119 in Logan is OK too because they didn't take out coal.

          • Jeff

            I don't know what's happening at Yeager, but if you're comparing constructing or expanding a runway to mountain top removal on the scale of spruce, you're already too far gone.

        • J the C

          Thanks for stepping up to the plate, Jeff.

    • Aaron

      One of the blown up mountains.

      ohvec.org/galleries/reclamation/twisted_gun/0001.jpg

  • ViennaGuy

    If it turns out that the EPA has the legal authority to yank a permit years after said permit has been issued, then the EPA should be forced to compensate the permit recipient for costs incurred after the permit was issued. It is not right that a company should be issued a permit and incur costs, only to have the permit rescinded months or years down the road.

    • Hillboy

      There is a difference between vetoing a permit and rescinding a permit. EPA never granted the permit and then "yanked it back." This was a difference in opinion between two federal agencies that have overlapping jurisdictions. The Army Corps of Engineers granted Arch a water pollution permit, which would have permitted seven miles of streams to be buried. The rules are pretty clear though that EPA has the right to overrule the ACE if they feel the results would be too destructive, which they did in this case. ACE granted the permit but EPA never approved it and, after studying it extensively, vetoed it. Arch was never fully cleared at any time to begin mining so the idea that they were told first to GO and then to STOP is inaccurate and misleading. They never had the green light.

      • The bookman

        Hillboy,

        You know differently. You know that the EPA signed off on the permit issued by ACE. The concerns of the EPA were addressed and the size of the project was reduced by 27%. The process requires the approval of ACE with input from the EPA. It was only after the 2008 election that the permit was called up for additional review, and it was at that time that they vetoed the approved permit. The mining company already had the green light to proceed with work on the site, and even Rockefeller was outraged by this action. Why try to paint a different picture?

        • Hillboy

          As I said with Aaron, if you can show me reliable documentation that EPA at some point approved the ACE permit I will admit that I am wrong. There was a lot of compromising by EPA on the Environmental Impact Statement but, as far as I can tell, EPA never approved the 404 permit. Yes, there was a lapse between the time ACE granted the permit in 2007 and the EPA veto of the permit in 2010. However, several environmental groups filed suit immediately after ACE granted the permit, which halted mining in the affected section so an EPA veto was a moot point.

          • Aaron

            Because that's what you want to believe hillboy, of which you will not change your mind. Years ago, I had a friend on the WV Highlands Conservancy who dragged me to about 5 public forums over the years. Despite what EPA officials stated in many venues, he refused to listen to logic or reason as well.

          • Hillboy

            Bookman, You are correct that EPA does not have to approve the 404 permit. However, the lack of a veto was not an indication that EPA had no problem with it. ACE granted the permit in spite of EPA's dissatisfaction with it. I don't dispute that the change in administrations was a factor. However, the fact that almost three years went by before EPA vetoed the permit was not evidence that they were on board with it. It seems just as likely that there was no need to veto the permit because it was stalled by legal challenges anyway.

            I have yet to see anything that shows that EPA did an about-face with regard to this permit.

            Aaron, from the sourcewatch website: "From 2006 to 2008, federal agencies continued to modify the Spruce No. 1 EIS and NPDES permit. On September 22, 2006, USACE issued its final EIS for Spruce No. 1 mine; barely one month following its release, USEPA released comments on the final EIS that express concerns with the inadequacy of the EIS. In November 2006, USEPA wrote in the Federal Register that it “continues to have environmental concerns about the project’s contribution to cumulative impacts,…methods used for the stream functional assessment, and the ability of the proposed mitigation to offset impacts to the aquatic environment” (USEPA, 2006, p. 1). USEPA formally offered to help USACE to develop a stream functional assessment protocol. Despite this attempt at continued cooperation, USACE issued the CWA Section 404 permit (199800436-3, Section 10) on January 22, 2007, authorizing the discharge of fill material from the Spruce No. 1 mine, effectively authorizing the commencement of mining on the site."

            I would consider that documentation that EPA had concerns that were not addressed when the permit was issued.

          • The bookman

            You ask for something that isn't possible. ACE approves the permit. The approved permit is the sum total of industry and regulatory agencies working to comply with regulation in a site specific situation. EPA looks at the permit and voices it's concerns. If those concerns are not taken seriously, or not addressed in meaningful ways by industry or ACE, then under the provisions of the Clean Water Act the EPA can veto the permit. At no point do they approve the permit.

            The point here is that in 2007, they accepted that their concerns were appropriately addressed, and the ACE approved the permit. After a long a deliberate process that resulted in a significantly diminished project due to the concerns of the EPA and others being addressed in the approved permit, and following a change in administration due to the 2008 election, this lawfully approved permit was called for a second review, and ultimately was vetoed nearly three years after approval was granted. There isn't a process by which EPA approves a permit. Only a process by which they veto it.
            It was a political move to recall the permit, an anti coal message being sent that there was a new sheriff in town. If this is allowed to stand, we all lose as the implications are that nothing is final, and permits are only good until the next election. Is that what we want in the USA?

          • Aaron

            Seems to me, that's a 2 way street. As such, where is the documentation that they vetoed the permit in 2007? For that matter, where is there documentation of concerns thtat were not addressed when the permit was issued in 2007?

      • Aaron

        That's not quite accurate. The EPA gave approval in 2007. They didn't have a problem with the permit until September, 2009.

        I wonder what changed in 2008.

        • Hillboy

          If you can document that, I am willing to admit I am wrong. From what I have read, EPA was dissatisfied with the ACE permit decision all along, even under the Bush administration. As was the US Fish and Wildlife Service. I haven't seen anything that indicates that EPA ever blessed that permit.

          • Aaron

            http://www.sourcewatch.org/index.php/Spruce_1_Mine

            That does a pretty good job of documenting the process.

            As to a smoking gun in which the EPA said "we have no problem with this permit," I doubt very seriously you will find that. In fact, even if they have no problem, I doubt you will find them saying so.

            It's part of the process. When they have a problem, they work with ACE and tell them so. If they had issues with the permit, why didn't they join the suit in 2007 and why didn't they make those problems public as they did in 2009?

      • Wirerowe

        The EPA overrode an approved permit after an administration changed that has never hid it's lack of objectivity
        towards coal and it's zeal to do everything possible to make it impossible to mine or burn coal. It is the corps permit and never as far as I know has EPA waited three years to overturn a permit rather than be part of the permit process at the time the permit is being issued
        Is that the way you want government run. Also would you please respond to the headline run by Ken Ward that says that the Supreme Court upheld Epa's decision. He knows good and well that they refused to hear the case. I call that lying . What say you?

        • Hillboy

          It appears that the headline has been changed because that is not the one I see. At most newspapers the headlines are not written by the same person who wrote the article beneath it. Someone may have corrected it.

          I don't disagree that a change in administrations had an effect on this permit (although EPA was objecting to it even under GW Bush). However, I do disagree with the assertion that this permit ever had full EPA approval that was rescinded.

          This happens both ways. James Watt, Reagan's Secretary of the Interior, as you may recall, totally rewrote the rules regarding surface mining that were passed during the Carter administration. They were so weakened that it was viewed by many as a backdoor repeal. Maybe it's not the best way to run a government but elections have consequences for all of us.

          • Wirerowe

            Brother you are either part of the permitting process or not. The permit was approved. Use your veto at that time. If the mine was out of compliance with the permit, they should have brought this to the Corp's attention. If they didn't like it and it was a properly issued permit then tell them to grow up. Many things in life don't go the way you want. Mother Gaia was doing just fine before these dudes were ever born and it will be doing just fine when they are gone.

          • Hillboy

            Wirerowe, I disagree that EPA was not a part of the process and stood by and vetoed it at the end. There is a very long and contentious history regarding this mine and EPA was very much a part of it at all stages. Much of it preceded the most recent change in administration.

          • Wirerowe

            Well stated hillboy. But you would agree that it would be a better process if the EPA would work as part of the process and raise their objections at the time and work that into the permit process and forever hold their peace. I do not buy the argument that they needed more time to reach a decision I buy the argument that they needed more time to see if the election would go their way. It goes both ways as you say. When it goes against what I think is best for the country I will object as you would in the James Watt case.

  • Rodney Hytonen

    Yank it.

    Yank them ALL.

    • ThatGuyOverThere

      I am sure you like your lights on, running water, warm water, the ability to view metronews on the web?

      • Leroy T-Mobile

        Natural gas is cleaner.coal sucks! All it causes is death.truth hurts

      • Brian

        Amen! Rodney doesn't know where his access to the world comes from. Yank HIS power!! We'll see how strong his position is.