Mar 142013

Just a quick note to let readers know that the D.C. Circuit Court of Appeals heard arguments today in a case challenging EPA's authority to effectively revoke an already issued Army Corps of Engineers permit allowing mountaintop mining (Mingo Logan Coal Company v. EPA, 12-5150).

Circuit Judges Karen LeCraft Henderson, Thomas B. Griffith and Brett M. Kavanaugh listened to and questioned lawyers from Hunton & Williams, representing Mingo Logan, a subsidiary of Arch Coal. The state of West Virginia and the U.S. Chamber of Commerce have joined the appellees to support the appeal of the district court's decision about a year ago when U.S. District Judge Amy Berman Jackson found that EPA had assumed too much authority under the Clean Water Act.

1:10 pm (ET): Updates will be posted here over the next couple of hours, so keep checking back for more from the arguments. The only observation I would venture to make at this point is that the judges focused attention not just on the wording of the Clean Water Act's Section 404, but on the purpose of the Act itself, which is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."

"This is all about who has the permitting authority," Griffith said to DOJ attorney Matt Littleton, asking him whether a "central feature" of the Clean Water Act was the compromise between EPA and the Corps that gave the Corps authority to issue Section 404 permits.

"That's correct," Littleton replied.

Then how, Griffith wanted to know, could EPA come in later and essentially negate the Spruce Mine permit, by removing certain disposal sites from it?

More on the way... 3 pm ET




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