In 2012, U.S. District Court Judge Amy Berman Jackson accused the EPA of engaging in “magical thinking” when the agency revoked part of a permit that had already been issued for Mingo Logan Coal Company’s Spruce No. 1 mountaintop removal mine in Logan County.
“The court finds nothing in the legislative history… that would show an intent by Congress to confer permit revocation authority on the Administration of the EPA,” Jackson wrote.
The EPA, energized by the Obama administration’s desire to remove coal from the country’s energy mix, appealed. The U.S. Court of Appeals for the D.C. Circuit found in favor of the EPA, saying the agency does have the power to veto a Clean Water Act 404(c) permit, even after it’s been issued by the U.S. Army Corps of Engineers.
Mingo Logan (which is owned by Arch Coal) appealed to the U.S. Supreme Court. Monday, the high court announced it was refusing to review the case. That triggered a celebration by the anti-coal crowd that imagines a fantasy world where their computers and refrigerators run on “sustainable energy.”
The real problem here is that the appeals court decision created a wildly uncertain permitting process for the industry. A coal company can get all the necessary permits from the U.S. Army Corps of Engineers and still have their planned mining operation stopped by the EPA.
“The Supreme Court allows a cloud of uncertainty to continue to hang over any project,” said National Mining Association President and CEO Hal Quinn. “Companies will lack the assurance required to make investments and create U.S. jobs.”
The EPA argues that it flexes its veto power only on rare occasions. That’s cold comfort to businesses that make gigantic investments and spend years trying to obtain the necessary permits, knowing that the EPA can still pull the plug at any time.
The Spruce No. 1 mine operation and expansion has been tied up in the courts since the 1990’s, and Arch Coal has spent millions of dollars trying to get the necessary permits and fighting the EPA in the courts.
Who would blame Arch if it gave up, wiping out the prospect of good jobs for coal miners, as well as those in related industries?
The process where the tops of mountains are scraped into valleys to get to narrow seems of coal is destructive and controversial. The stated goal of the anti-coal movement is to stop all mining, particularly mountaintop removal.
That is being accomplished, not through public policy decisions by the country’s elected representatives, but rather by fiat from an unelected government agency. The Supreme Court’s decision not to take up the Spruce case will further embolden the EPA’s tendency since the 2008 election to overreach and put the state’s leading industry on a glide path toward extinction.
For now, when it comes to mine permits, magical thinking is the new rule of law.