Yesterday’s ruling by the D.C. Circuit Court of Appeals affirms the authority of the Environmental Protection Agency to protect clean water from coal mine and other destructive waste. As one attorney working on the case put it:
[The] decision upholds essential protection for all Americans granted by the Clean Water Act. Communities in Appalachia can finally breathe a sigh of relief knowing that EPA always has the final say to stop devastating permits for mountaintop removal mining. Now, we just need EPA to take action to protect more communities and mountain streams before they are gone for good.
Naturally, the industry’s backers in Congress are already threatening legislative action to take away the government’s authority to ensure clean water. For example, David McKinley (R-WV) said that “Congress must be vigilant and fight against overreach by all executive agencies.”
At issue is a section of the Clean Water Act that allows the EPA to veto “dredge and fill” permits that let mining companies dispose of waste in streams and bodies of water. The permits are issued by the Army Corps of Engineers, but EPA has the authority to set certain areas off limits—effectively vetoing the permits—if it determines that dumping the waste will “have unacceptable adverse impacts” on recreation, wildlife, and the like.
But questions remained as to when EPA could veto these permits. In the particular case of the Spruce No. 1 mine, the EPA vetoed a permit to allow the mining company (a subsidiary of corporate giant Arch Coal) to dispose of waste from its mountaintop removal operation into three streams and their tributaries after the Army Corps had granted the permit.
The company sued, but the court ruled in favor of the EPA saying:
[This section of the Clean Water Act] imposes no temporal limit on the [EPA] Administrator’s authority to withdraw the Corps’s specification but instead expressly empowers him to prohibit, restrict or withdraw the specification “whenever” he makes a determination that the statutory “unacceptable adverse effect” will result.
This decision about when EPA can veto mining waste permits has major implications for what is gearing up to be one of the biggest natural resources battles in the coming years — the proposed Pebble Mine in Alaska. Multinational mining giants Anglo-American and Northern Dynasty are exploring a deposit of minerals including significant amounts of copper, gold, and molybdenum ore. If permitted, the mine would be located in the headwaters of Bristol Bay, the source of about 40 percent of our nation’s annual wild fish catch.
Like the Spruce No. 1 mine, the Pebble mine will need permits from the Army Corps of Engineers to dispose of its billions of tons of mining waste in nearby waterways. Commercial fishermen and others fighting the proposed mine have asked the EPA to issue a preemptive veto of the permits by prohibiting the area from being a waste disposal site. The court’s decision yesterday that EPA may veto permits “whenever” has given these advocates an even stronger case in their fight against the mine.