A federal appeals court today ruled in favor of the Environmental Protection Agency in a case that will affect how states including Kentucky and West Virginia issue permits for mountaintop removal coal mines.
At issue were two types of permits: 404 permits—which are issued when mining companies want to fill valleys with mining waste—and 402 permits, which are for discharges to waterways. Under the Obama Administration, the EPA announced it would be taking a closer look at 404 permits by subjecting them to “enhanced coordination procedures.”
The agency also told state regulators that they needed to consider conductivity—a measure of dissolved solids in the water—when issuing 402 permits, and issued what it called a “final guidance” on the matter. In conductivity, higher levels of conductivity degrade water quality.
Both announcements were met with outrage from coal companies, the National Mining Association, and Kentucky and West Virginia regulators. The NMA, Kentucky and West Virginia challenged the EPA in court and won. But the U.S. Court of Appeals’ decision today overturns that decision in favor of the EPA and the environmental groups that supported the EPA policies.
But the decision is complicated. The court said the EPA has the authority to issue enhanced coordination procedures for surface mine permits. But it also found that the final guidance on conductivity doesn’t count as a final agency action that’s open to legal challenges.
Environmental groups greeted the court decision as a win. Doug Doerrfeld of Kentuckians for the Commonwealth said in an emailed statement:
“By refusing to use the EPA Guidance on Conductivity and by being a party to the suit against the enforcement of the Clean Water Act, Kentucky officials have made it perfectly clear that allowing the pollution to continue is more important to them than protecting the health of Kentuckians and our communities. This runs counter to other efforts, such as the governor’s SOAR initiative, to create a better future for the region. This federal court decision is a victory for the clean water that is essential to southeastern Kentucky’s bright future.”
Bruce Scott, commissioner of Kentucky’s Department for Environmental Protection Commissioner, said he’s not sure what effect the decision will have on the state, calling today’s decision a “hollow victory” for the EPA.
His agency resisted using conductivity measures in permits; instead, he said the state is proposing using in-stream biological analyses combined with toxicity testing.
“Until EPA adopts a numeric standard [for conductivity] or the states adopt a numeric standard, we’re left with what we have,” Scott said. “And that’s all based on the biology, which is where we ultimately ended up at with the biological approach.”
Earthjustice Attorney Emma Cheuse said the court didn’t rule on the merits of the conductivity guidance, just that it was in the EPA’s power to issue. She said the decision could still end up affecting Kentucky.
“Based on this decision, EPA has full authority now to without any obstacles be able to advise its staff to follow the Clean Water Act and important science showing that mountaintop removal mining is devastating waters in Appalachia and really causing lasting, really irreparable harm to the communities that depend on them,” she said.
She said EPA can and should require Kentucky to include conductivity in its general 402 permit, which is up for renewal this year. In light of today’s decision, it would take the EPA rejecting a permit based on that conductivity guidance, and then a state deciding to sue, before there’s a firm answer on the issue.