CHARLESTON, W.Va. — The state’s attorney general says a U.S. district court will now be asked to weigh in on a separate question tied to the federal Environmental Protection Agency’s authority to retroactively veto permits under the Clean Water Act.

Earlier this week, the U.S. Supreme Court refused to hear the case involving a permit the EPA pulled years after the U.S. Army Corps of Engineers issued it for Mingo Logan Coal Company’s Spruce Mine – a massive surface mine project – in Logan County.

However, Patrick Morrisey, West Virginia’s attorney general, said that is not the end of the case since the U.S. Supreme Court’s move effectively addressed the EPA’s procedure and not the EPA’s justification.

“The whole debate shifts to whether the veto was based on substantially new information of adverse environmental effect.  That’s something the district court is going to sort out.  That’s a fact-based inquiry,” he said.

“I think that there’s going to be a robust debate on that point.  The company believes that they have very strong evidence that there was no such new information.  I think, given the procedural history here, there’s a reason to question the EPA’s motives.”

Officials with Arch Coal, the parent company of Mingo Logan Coal, have indicated they’ll take the case back to the U.S. District Court for a ruling on the merits now that the U.S. Supreme Court has passed, despite arguments for a hearing from 27 state attorneys general, including Morrisey.

“No one is questioning that the EPA shouldn’t have a role in this process.  The question is when and where,” said Morrisey on Tuesday’s MetroNews “Talkline.”

“We think, in this case, that they went beyond where even the state DEP (Department of Environmental Protection) would be normally permitted to engage.”

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  • Mike Dineen

    It shocks me when folks get upset when the EPA start enforcing laws that have been on the books for years. Just because big coal has ignored the laws or regs for so long does not make it right. Not to mention the information about MTR just gets worse

  • Gary K.


  • Aaron

    While I favor regulation, no agency should have unfettered control over any business they regulate. In this case, the EPA submitted their "new" evidence. The Army Corp of Engineers disagreed that it was new. Instead of granting EPA the ability to retroactively pull a permit, the onus should be on that agency to prove the information is new.

    This is a fight that our duly elected representatives need to take to floors of Congress. If this type of power is allowed to stand, it will negatively affect us all. As Lord Acton said, power corrupts and absolute power corrupts absolutely. We’re well on that path with our central government.

    • Hillboy

      The reason ACE is involved in granting the 404 dredge and fill permit is mainly to evaluate the structural stability of the fill. The reason EPA is involved is to assess if the fill is overly damaging to the environment. If EPA overstepped their role by waiting too long to veto the ACE permit, then you could just as easily say that ACE overstepped their role by unilaterally ruling on whether the EPA information was "new enough."

      EPA released two reports in 2009 and 2010 that were based on relatively long-term studies of MTR mines. Both showed that MTR mining was damaging to the aquatic environment downstream. Valley fill rubble is not inert. If ACE did not consider that new information then the conclusion is that they already knew that fills were destructive and believe that destruction of downstream aquatic life is acceptable. That is not their role. That makes ACE a rogue agency.

      • The bookman

        If valley fills are deemed destructive to aquatic life downstream, would that not apply to all valley fills, and therefore jeopardize any current or future permit authorizing a valley fill? Is there new scientific evidence that indicates this new response by the EPA? No brinksmanship here, just asking your honest opinion.

        • Hillboy

          possibly. Will it eliminate fills? I doubt it.

          • The bookman

            Well you seem to be reasonable so hopefully a middle path can be found at some point. Thanks for debate.

          • Hillboy

            If a Republican is elected president in 2016 I fully expect the EPA policy regarding MTR mining will change in some way. You consider this administration to be anti-coal. I consider the previous administration to be anti-environment. It's all a matter of perspective.

          • The bookman

            Then how do they justify the discriminate application of this new scientific information? It will be interesting to see where this proceeding takes us, and whether the EPA maintains its anti coal posture following the 2016 Presidential Election. I know you favor this opinion by the EPA, but I believe this decision places an inordinate amount of power in the hands of one agency to exact their will into the permit. The process should produce a permit that reflects the interests of all parties involved, not a permit that meets the specifications of one agency prone to political agendas of either party.

    • The bookman

      And on that we agree. +1