Last fall, Arch argued that Congress never intended to give the EPA "unbridled power" over water-pollution permits for coal mines, and that final authority to issue, oversee and enforce permits issued under section 404 of the Clean Water Act lies solely with the corps.
The EPA countered that while the Clean Water Act lets the corps issue permits for the dumping of fill material, another section of the law gives the EPA the unambiguous right to "prohibit, deny, restrict or withdraw specification of fill disposal sites."
That power was created in a legislative compromise the EPA says was intended to let the agency do its job and prevent unacceptable environmental damage. The EPA says it can invoke that authority before, during or after the corps' permitting process.
The appellate decision, written by Judge Karen LeCraft Henderson, says Congress made its intent plain in "unambiguous language" giving EPA "a broad veto power extending beyond the permit issuance." Nor does the law impose a time limit for EPA to act, she wrote, instead empowering it to do so whenever it determines an "unacceptable adverse effect" will result.
National Mining Association President Hal Quinn said the decision "has pulled the regulatory rug out from under the feet of U.S. companies."
"As a result, a cloud of uncertainty now hangs over any project," he said, "and companies will no longer have the assurance required to encourage investments, grow our economy and create U.S. jobs."
U.S. Rep. Shelley Moore Capito, R-W.Va., said the "misguided" decision could translate to lost jobs.
"If the EPA can take back a permit from a coal mine in West Virginia," she said, "they can do the same to any business in America."
But Dianne Bady of the Ohio Valley Environmental Coalition called the ruling "a logical understanding of EPA's role to protect the environment and to protect people from environmental harm."
"The U.S. Army Corps of Engineers has literally overseen the destruction of Central Appalachia and EPA oversight is needed to stop it," said Joe Lovett of Appalachian Mountain Advocates,
Earthjustice attorney Emma Cheuse said communities "can finally breathe a sigh of relief knowing that EPA always has the final say to stop devastating permits for mountaintop removal mining.