The coal industry and officials from numerous states, including Kentucky, claimed victory yesterday after a federal judge ruled the Environmental Protection Agency’s new guidance on water pollution near surface mines overstepped the agency’s authority. But the judge’s decision still doesn’t add certainty to the industry’s permitting process.
Many states—including Kentucky—have federal authority to oversee their own water permitting programs. The states set water quality guidelines, which are approved by the EPA, and have the authority to issue or deny permits. But the EPA still has final say over the permits, and was using the measurement of a water body’s conductivity to help determine whether the mine could be permitted and still not violate water quality standards.
Judge Reggie Walton objected to this approach, which he saw as a way for the agency to sidestep the official rulemaking process and an overstepping of the agency’s authority.
This is unequivocally a win for the coal industry, as well as for the state regulatory programs that joined the industry to challenge the rule. But the ruling still doesn’t eliminate uncertainty into the coal mine permitting process—which has been a major industry criticism of the EPA’s new policies.
The EPA could appeal the decision, which would send it back to court. And Department of Environmental Protection Commissioner Bruce Scott says it’s still too early to know what unintended consequences Judge Walton’s decision could have for the permitting process.
Yesterday’s decision is the second highly-anticipated ruling from Judge Walton. In October, he again ruled against the EPA, saying the agency’s practice of coordinating valley fill permit decisions with the U.S. Army Corps of Engineers overstepped the agency’s authority under the Clean Water Act.