UPDATE: Court sides with EPA in mining permit process, WV lawmak - Beckley, Bluefield & Lewisburg News, Weather, Sports

UPDATE: Court sides with EPA in mining permit process, WV lawmakers fight back

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Update, July 16, 3 p.m.:

West Virginia lawmakers are, once again, fighting back against the July 11 court ruling that sided with the Environmental Protection Agency on its authority to regulate mine permitting process.

Following the announcement of the decision, U.S. Reps. Nick Rahall, D-W.Va., and Shelley Moore Capito, R-W.Va., released statements criticizing the court’s decision and condemning the EPA’s permitting policies.

But Rahall has since taken steps to advance a series of three bills that take aim at the mining permit ruling by trying to “block the EPA’s stifling overreach into West Virginia’s economy,” according to a July 16 news release.

“This EPA has turned the Clean Water Act permitting process in West Virginia on its head,” Rahall said in the statement. “This EPA has thumbed its nose at the legal authorities of other Federal agencies. It has run roughshod over State agencies charged with overseeing the permitting process. And it has shown a callous disregard for the lives and the livelihoods of our coal miners who simply want to go to work and earn an honest living to support their families. These bills my Committee advanced today aim to stop EPA’s abusive misuse of power and its outlandish twisting of the legal framework.”

One bill in the series, the Regulatory Certainty Act, introduced by Rahall and Rep. Bob Gibbs, R-Ohio, would prevent the EPA from retroactively vetoing a Section 404 Clean Water Act permit. The legislation aims to “rein in the expanding use of CWA authorities by the EPA, which has been using its authority with increasing aggression against West Virginia coal mining,” according to the release.

Introduced by Rep. Steve Southerland and cosponsored by Rahall, the Waters of the United States Regulatory Overreach Protection Act of 2014 also fights back at the recent ruling, addressing the EPA’s “current regulatory efforts to change the legal definition of ‘waters of the United States’ and expand the agency’s CWA permitting jurisdiction,” according to the statement.

During committee consideration, Rahall also amended The Coal Jobs Protection Act of 2014, which was introduced by Capito as an attempt to “curb EPA's unlawful use of guidance to block permits for coal mines,” to address the EPA’s “overreach” into the CWA permitting program. “It would help to ensure a cooperative relationship between the State and Federal oversight agencies and prevent the EPA from unilaterally changing a State's approved program without the State's concurrence,” according to the release.


Original story, July 11:

After a several-years-long battle in the court system, the Environmental Protection Agency came out with a victory July 11 when a federal appeals court panel upheld the Obama administration's efforts to block water pollution from mountaintop removal coal mining.

The Friday, July 11 decision made by three-judge panel in U.S. Court of Appeals for the District of Columbia Circuit overturned a previous decision, in which U.S. District Judge Reggie B. Walton ruled that the EPA had overstepped its authority by requiring mountaintop removal coal mining permits to go through an enhanced review process.

The battle began after the EPA and Army Corps of Engineers adopted the Enhanced Coordination Process in 2009, which allowed the EPA to screen and review individual mining permits submitted to the Corps under a section of the Clean Water Act that regulates the material discharge into U.S. waters. Then, in 2011, the EPA promulgated a Final Guidance document relating to the CWA permits, which recommended that states impose more stringent conditions for issuing permits under a section of the CWA that regulates the permitting process for pollutant discharge.

The National Mining Association, which called the guidelines a “job destroyer,” joined by other coal industry groups and the states of West Virginia and Kentucky, then filed a lawsuit against the EPA and then-Administrator Lisa Jackson to challenge the stringent policies.

Walton sided with the coal industry coalition when he issued a partial summary judgment in the lawsuit in October 2011 and a ruling in July 2012 stating that the agency “exceeded the authority conferred upon it by the Clean Water Act” in requiring mountaintop mining operations permits to undergo the additional EPA review.

A coalition of conservation and social justice groups call the latest overturn of Walton's ruling a "victory for Appalachia."

“All three of the district court decisions that the mining industry trumpeted several years ago as examples of EPA ‘overreach’ — the decisions overturning EPA’s Spruce Mine veto, the Enhanced Coordination procedure, and the conductivity guidance document — have now been reversed and EPA’s position has been upheld," Jim Hecker, attorney with Public Justice, said in a statement.

Several conservation groups heavily focused on the "necessity" of this ruling in environmental terms.

“This is an important step in protecting our mountain streams from the toxic discharge from mountain top removal operations and in protecting the Appalachian people from further health impacts from this destructive practice,” said Jane Branham of Virginia-based Southern Appalachian Mountain Stewards. “We are so relieved by this court decision because historically, our state regulatory agencies have failed to enforce existing laws. We have needed this stronger oversight by the EPA to ensure that states protect Appalachian communities.”

West Virginia lawmakers, on the other hand, applauded Walton’s decision in 2012, but the court’s latest decision to uphold EPA’s Enhanced Coordination Process has, not surprisingly, already received harsh backlash within the state.

U.S. Rep. Nick Rahall, D-W.Va., slammed the court’s decision, calling it “completely wrongheaded.”

“The Court believes the EPA is not treating guidance as binding, but West Virginia coal miners know differently,” Rahall said in a news release later the same day. “With new requirements not envisioned by the Congress, the so-called ‘enhanced coordination’ is a euphemism for EPA control. EPA has created a permitting process with no end, stringing permit applicants along indefinitely, constantly changing the permitting goalposts. I stand with our coal miners and will continue to work to block EPA from using this heavy-handed approach against coal. Today’s decision is not the end of the debate – Congress will have something say.”

U.S. Rep. Shelley Moore Capito, R-W.Va., also criticized the opinion that she said would allow the EPA to delay permits.

She also announced today that the House Transportation & Infrastructure Committee will take up her bill, the Coal Jobs Protection Act, next week. Capito is a senior member of the committee and is the co-chair of the Congressional Coal Caucus.

“The D.C. Circuit’s opinion issued today would allow the U.S. Environmental Protection Agency to delay the permitting process and cost West Virginia jobs. I introduced the Coal Jobs Protection Act to create clear deadlines on permitting decisions and to require the EPA and the Army Corps of Engineers to make regulatory decisions transparently. As the EPA and Army Corps operate now, their guidance is not subject to public notice and comment, contradicting this administration’s stated commitment to transparency,” Capito said in a statement. “The Coal Jobs Protection Act would clearly address today’s decision and restore certainty to important West Virginia industries. I am pleased that the House Transportation and Infrastructure Committee will mark up my bill next week, and I will continue to fight for the jobs of men and women who depend on West Virginia’s coal industry.”