WASHINGTON, D.C. — A federal appeals court Friday ruled the federal EPA has not overstepped its authority with a program where it coordinates with the U.S. Army Corps of Engineers to further review mountaintop removal coal mining permits.
West Virginia, Kentucky, coal companies and others have been challenging what’s called the Enhanced Coordination Process claiming it makes it nearly impossible for coal companies to receive a Clean Water Act permit for mining under the program. The EPA began using the additional review in 2009.
A federal judge ruled in 2012 the EPA had gone too far but the appeals court overturned U.S. District Judge Reggie Walton’s decision Friday saying the two agencies, EPA and Corps of Engineers, have the authority to cooperate on the reviewing of the permits. The EPA cited nearly 80 permits for further review in 2009.
The appeals court sent the case by U.S. District Court to dismiss the claims of the plaintiffs.
Gov. Earl Ray Tomblin reacted Friday evening expressing concern about future attempts to gain permits.
“While we certainly appreciate the Court’s view that the EPA’s ‘guidance’ lacks the force of law, and that West Virginia has the regulatory power regardless of EPA’s viewpoint, EPA’s actions at the time strongly indicated otherwise. In addition, we have great concern that continued ‘enhanced coordination’ between the EPA and Army Corps of Engineers could create an endless regulatory loop that adversely affects the ability to issue permits. We, in consultation with the other litigants, will continue to explore our legal options after additional review of the ruling.”
The environmental community praised the decision. Cindy Rank of the West Virginia Highlands Conservancy took satisfaction in the ruling.
“As baffling as it was that the Mining Association and representatives of several state governments challenged the effort by EPA and the Corps to agree upon a process by which they work together on permitting actions, it is ever so much more gratifying today that the appeals court affirmed the legality, not to mention the wisdom, of such interaction,” Rank said.