Gov. Earl Ray Tomblin applauded the federal judge's ruling today in a lawsuit filed by West Virginia and others against the U.S. Environmental Protection Agency to free up coal mining permits delayed by the EPA's two-year-old "Enhanced Coordination Process." The ruling will allow Section 404 Permits issued by the U.S. Army Corps of Engineers to once again be normally processed.
"This is indeed a great day for West Virginia and West Virginia's mining industry," said Gov. Tomblin. "As we stated over a year ago, the EPA and the Obama Administration have been exceeding the authority granted to them by Congress to regulate water quality in the Appalachian Basin. We believe in the rule of law and the judge has confirmed our assertions against the EPA."
"The DEP is pleased the judge agreed with our determination that the EPA had overstepped its boundaries," DEP Cabinet Secretary Randy Huffman said. "This puts the Corps of Engineers back into the area of regulatory stability. Now we can focus on the process outlined in the law and rules rather than on these unlawfully promulgated processes."
Today, Judge Reggie Walton, of the U.S. District Court for the District of D.C., overturned EPA's unlawful, extra-regulatory review process for state mining permits that the EPA has used to delay and impede mining operations in West Virginia and other Appalachian states.
A year ago, West Virginia, the National Mining Association and others filed suits against the EPA and the Army Corps of Engineers, claiming the "Enhanced Coordination Process" (EC Process) and EPA's April 1, 2010 Interim Guidance Document violated the Clean Water Act and the Administrative Procedures Act. The case began under Gov. Joe Manchin and has been aggressively pursued under Gov. Tomblin.
The court today ruled on part of the state's claims against EPA, granting the National Mining Association and the state's joint motion for partial summary judgment. Ben Bailey of Bailey & Glasser LLP, who represents the state in this suit, argued that motion on behalf of the state in Washington, D.C., on Sept. 16, along with lawyers for the NMA.
The court issued a written opinion granting that motion, holding that by implementing the new review process, EPA had exceeded its statutory authority under the Clean Water Act because the Corps is the principal permitting authority for these types of mining permits, while EPA plays a lesser, supporting role under the Act. The court also held that EPA had violated the Administrative Procedures Act by effectively amending the Section 404 permitting process by conferring additional reviewing authority on the EPA through the EC Process without engaging in notice-and-comment rulemaking. Accordingly, the court ordered that the EC Process be set aside, allowing Section 404 permits to return to normal processing.
Today's ruling successfully resolves half of the state's claims against the EPA. The state's challenge to EPA's April 1, 2010 Interim Guidance, and now the Final Guidance issued in July, remains pending in the D.C. District Court, where the state is joined by the Commonwealth of Kentucky, the Kentucky Coal Association, the City of Pikeville, Ky., and the NMA, along with five private Kentucky-based coal companies.
"Today's ruling is only half the battle," DEP Secretary Huffman said. "The other major piece of the suit won't be heard until next spring. The allegations are the same -- The Guidance Document is EPA's attempt to promulgate water quality standards outside of the normal rule-making procedures. Those standards impact the DEP's permitting process."