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Please begin with an informative title:

The EPA's authority to revoke the permit of the Spruce 1 mine, the largest planned mountaintop removal mine in America was reestablished by the U.S. Court of Appeals for the District of Columbia, reversing a lower court decision. The decision written by circuit judge Karen LeCraft Henderson determined:

The Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time … Thus, the unambiguous language of subsection 404(c) manifests the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.
The Spruce 1 Mine would have covered many miles of the headwaters of streams with pulverized rock mine waste that the Bush administration and mining industry renamed "fill". The EPA determined that the Spruce 1 mine would violate the Clean water Act and revoked the Army Corps of Engineers permit to mine. EPA monitoring has shown that water flowing out of these mining residues contains toxic chemicals (e.g. arsenic and selenium) in amounts that would exceed regulatory limits. The lower court stated that EPA did not have the authority to enforce their rules once a permit was granted by the Corps, stating
EPA’s interpretation of Section 404 of the Clean Water Act was “magical thinking,”
but the appeals court overturned the ruling.
Executive director of the southern West Virginia based environmental group Coal River Mountain Watch, Vernon Haltom, says the permit would have buried more than six miles of streams.

“Arch could have actually got this permit approved in the beginning had they used a mining plan that the EPA was happier with,” Haltom said. “The EPA has shown no qualms with approving permits that will bury three miles of streams but when you start getting into six and seven miles of streams then they start taking note and paying attention.”

“This is one permit out of many, many, many that is, I guess, especially egregious because of its size.”

A big shout out to Mary Anne Hitt, who fought for years to save the mountains!

Thank you Mary Anne.

A decision by the Sixth Circuit of the United States Court of Appeals on Monday revoked the Army Corps of Engineers expedited permitting process, and the activities grandfathered by it, that enabled coal companies to level mountains across Appalachia. Coal companies will no longer be able to skirt environmental laws and regulations with a wink and a nod from the Army Corps of Engineers.

This much is clear from the administrative record: the Assessment omitted the present effects of past actions from its cumulative-impact analysis, as required by 40 C.F.R. § 1508.7, and its conclusory final-decision statements do not cure this defect. Though we conduct “limited” NEPA review, Cmtys., Inc., 956 F.2d at 623, we have a duty to set aside the Corps’ action when it eschews its NEPA obligation to “adequately consider[] and disclose[] the environmental impact of its actions.” Balt. Gas & Elec. Co., 462 U.S. at 97–98. Because the Assessment failed to comply with the NEPA regulations’ requirements, we set aside the Corps’ reauthorization of permit 21 as arbitrary and capricious.

D. Conclusion

Though we generally give greatest deference to an agency’s “complex scientific
determination[s] within its area of special expertise,” Balt. Gas & Elec. Co., 462 U.S.
at 103, we may not excuse an agency’s failure to follow the procedures required by duly promulgated regulations, see, e.g., Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43. During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper’s demands.

This policy argument misses the point. After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment No. 11-6083 Ky. Riverkeeper Inc., et al. v. Rowlette, et al. Page 16 instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

We hereby invalidate permit 21 as arbitrary and capricious, 5 U.S.C. § 706(2)(A), but stay this ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.


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Originally posted to DK GreenRoots on Wed Apr 24, 2013 at 10:44 AM PDT.

Also republished by Good News and Climate Change SOS.

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