After lengthy review, the Army Corps of Engineers in 2007 issued a permit under the Clean Water Act for the Spruce No. 1 mine in Logan County, which Arch Coal Inc. had begun planning in 1998.
The Environmental Protection Agency did not object.
But a change in administrations brought a new EPA administrator who saw no limit to her authority. In January 2011, the EPA rescinded the other agency's permit, in what a federal judge would later say was "a stunning power for an agency to arrogate to itself."
In March 2012, U.S. District Judge Amy Berman Jackson reversed the EPA and said the EPA resorted to "magical thinking" to rationalize its action.
But the federal government has seemingly unlimited resources, and the EPA appealed the case. This week a federal panel of three appellate judges decided that the EPA could pull permits that already had weathered the years-long approval process.
"The Congress made plain its intent to grant the [EPA] administrator authority to prohibit/deny/restrict/withdraw a specification at any time," Judge Karen LeCraft Henderson wrote for the majority.
The law, Section 404 of the Clean Water Act, "imposes no temporal limit" on the EPA administrator's authority to step in whenever he deems necessary.
It's not hard to imagine the deterrent effect on capital investment.
Further, the impact of this poorly decided case goes beyond coal. Companies in other industries also need water quality permits for their activities.
While certainly there are situations when a government agency should, after careful review, revoke a permit it has issued, this was not a permit issued by the EPA.
This move was based not on science, but rather politics. If the science were there, the Corps of Engineers never would have issued the permit.
The full Washington, D.C., Court of Appeals should hear the case and reverse these three judges, and when it goes to the U.S. Supreme Court, justices should unanimously vote to rein in a rogue federal agency - as a warning to anyone in government who dares to abuse his authority.