Obama’s EPA holds the Ultimate Weapon in the Continuing War on Coal: Post Permit Authority to Revoke an Issued 404 Permit

The United States Supreme Court in an order denying certiorari effectively affirmed the EPA’s authority to exercise its “Veto” power to revoke or modify an issued permit. The U.S. Supreme Court in Mingo Logan Coal v. EPA Appeal No. 13-599 today denied the appeal filed by Mingo-Logan Coal Company (a subsidiary of Arch Coal Company).  Mingo Logan Coal sought review of the decision by the United States Court of Appeals for the District Court of Columbia Circuit issued on April 23, 2013 in Mingo Logan Coal Company v. United States Environmental Protection Agency.  Appeal No. 12-5150.

The Circuit Court of Appeals held that the Clean Water Act in Section 404(c) granted the U.S. EPA the authority to “veto” any permit which approved a defined area as a “disposal site” if the EPA determines “that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife or recreational areas.”  The Circuit Court of Appeals also confirmed that the EPA could exercise its authority after the permit had been issued by the U.S. Corps of Engineers.

In addition to its argument that the EPA’s authority had to be exercised before the U.S. Corps of Engineers issued the permit, Mingo Logan Coal had argued that EPA’s decision was arbitrary and capricious.  The United States Appeals Court did not address that argument.

The options available to Mingo Logan Coal to pursue further review of the EPA’s decision are limited.  Mingo Logan Coal could ask the United States Supreme Court to reconsider its decision pursuant to Rule 44 of the United States Supreme Court Rules of Procedure.  The Company’s Petition for reconsideration must be filed within Twenty-five (25) days of the date the order denying certiorari or in this case no later than April 18, 2014.  If the Company decides to pursue that option, its petition must assert “intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented.”   In other words, it appears that the Company cannot ask the Court to reconsider its original arguments unless there has been a significant change in the circumstances since the case was submitted for decision.   The “standards” present a significantly difficult hurdle for any petitioner seeking reconsideration.  The Company’s other remaining legal option, short of accepting EPA’s decision or seeking some negotiated modification, will be to pursue the arbitrary and capricious arguments before the United States District Court for the District of Columbia.

 

Bob Pollitt is a member of Steptoe & Johnson's professional staff assisting attorneys with research and client retention. Before focusing his efforts on research, Bob represented clients in administrative and civil environmental matters and related toxic tort litigation, including environmental permitting, compliance and enforcement in the areas of coal, water and groundwater resources, solid and hazardous waste and both above and underground storage tanks.
 
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