Court case: Coal mine gets permit. Can EPA take it back again?

If a mine has received a federal permit to expand its current operations, can the US Environmental Protection Agency (EPA) revoke the permit retroactively to protect the nation’s water?

That was the issue at stake in a Washington, D.C., courtroom hearing held Thursday over Arch Coal’s 15-year battle to expand its mining operations in West Virginia. The case involves the EPA’s authority under the Clean Water Act and is closely watched by energy companies and other industries worried that EPA could also pull their environmental permits after the fact. Final answers aren’t expected anytime soon in a case that could go to the Supreme Court.

“Allowing EPA perpetual and unrestricted license to modify a permit after its issuance – even when the agency authorized to modify the permit has concluded there are no grounds to justify doing so – would destroy the certainty that the permit is intended to provide and upset Congress’s allocation of regulatory authority among the Corps, the States and EPA,” Arch Coal states in documents prepared for Thursday’s court hearing. “Congress did not give EPA such unbridled power.”

Explaining the coal company’s position in the US Court of Appeals March 14, Arch Coal attorney Robert Rolfe insisted that although the EPA has a recognized role in the permitting process, “that role has to be exercised before the permit is issued,” not retroactively.

Judge Brett Kavanaugh commented that while the Clean Water Act appears unclear on whether Congress intended to give the EPA the right to revoke permits issued by the Army Corps of Engineers, “What Congress may have thought is EPA may have been more sensitive to environmental issues, so let’s make them a backstop.” Judge Kavanaugh pointed out that because the corps has the authority to modify or withdraw a permit at any time, “I don't see how anyone could have a permit and assume it is going to stay in place.”

Faced with industry fears that all federal permits could be at risk, the EPA argues that it has only withdrawn a permit retroactively in three instances – 1981 in Florida, 1992 in Virginia, and in the current West Virginia coal case.

“EPA does not undertake such an action lightly,” wrote EPA Assistant Administrator Peter Silva when the agency withdrew Arch Coal’s permit in 2011. He added that EPA’s decision “does not threaten the tens of thousands of permits and authorizations that are issued by the U.S. Corps of Engineers every year.”

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