Academic journal article Energy Law Journal

Diminishing the Finality of Clean Water Act Pollutant Discharge Permits: Mingo Logan Coal Co. V. EPA

Academic journal article Energy Law Journal

Diminishing the Finality of Clean Water Act Pollutant Discharge Permits: Mingo Logan Coal Co. V. EPA

Article excerpt

Synopsis: In 2007, the United States Army Corps of Engineers (USACE) issued a section 404 permit authorizing Mingo Logan Coal Company to dispose of fill material from the Spruce No. 1 Surface Mine into three streams in West Virginia. Despite reservations concerning "significant environmental impacts," the Environmental Protection Agency (EPA) declined to pursue a subsection 404(c) objection. In 2011, the EPA withdrew the specification of the disposal site for the Spruce No. 1 Surface Mine. Mingo Logan filed an action in the United States District Court for the District of Columbia challenging the EPA's authority to 'revoke' the permit. Both the EPA and Mingo Logan filed motions for summary judgment. In 2012, the district court granted summary judgment in favor of Mingo Logan, concluding that the EPA had exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of a disposal site after a permit had already been issued by the USACE under section 404(a). The EPA appealed the decision of the district court. On appeal, the District of Columbia Circuit Court of Appeals reversed the district court's summary judgment ruling and upheld the EPA's revocation of Mingo Logan's section 404 discharge permit, finding that Congress had clearly spoken that the EPA had the power to revoke a USACE site specification post-permit. The EPA's unprecedented use of its "plenary authority," to invalidate an existing section 404 permit at any time, simply by withdrawing the specification of a disposal site, significantly decreased finality within the permitting process.

I. Introduction

On April 29, 1970, President Richard M. Nixon's Advisory Council on Executive Organization composed the "Ash Council Memo."1 The Memo recommended that the major federal government anti-pollution programs be merged into a new independent agency of the Executive Branch-the Environmental Protection Agency (EPA).2 In its Memo to the President, the Council shared an important insight into the broad policy considerations underlying federal environmental regulation: one of the primary purposes for the establishment of the regulatory system was to find some way to balance "economic and social aspirations ... against the finite capacity of the environment to absorb society's wastes."3 The Council further stated that "[sjound environmental administration must reconcile divergent interests and serve the total public constituency. It must appreciate and take fully into account competing social and economic claims."4

These ideals-balancing the interests of competing societal, economic, and environmental concerns-have been a consistent motif throughout the following decades of environmental regulation. They have survived federal administrations from both political parties, shifting societal perspectives on environmental concerns, and seasons of both economic growth and instability. Finality of administrative decisions is a hallmark of an agency process that succeeds in fully accounting for competing societal and economic claims, while respecting the reliance on conclusive agency rulings by both industry and the environmental community.5

Legislative history shows that Congress did not depart from these important policy considerations when it passed the 1972 Clean Water Act (CWA).6 Senator Edmund Muskie of Maine, the Senate's primary proponent of the legislation, proposed that the "three essential elements" of the CWA were "[ujniformity, finality, and enforceability."7 The EPA applied these "three essential elements" for almost forty years during the CWA section 404 permitting process.8

Subsection 404(a) of the CWA authorizes the Secretary of the Army to issue permits for the discharge of dredge or fill material at disposal sites, which are specified through permits issued by the Secretary.9 The Administrator of the EPA, after consulting with the U.S. Army Corps of Engineers (USAGE), has the power to veto the Corps' disposal site specification. …

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