Jul 112014

Panel reverses district court

In a significant victory for the Environmental Protection Agency, the D.C. Circuit Court of Appeals reversed U.S. District Judge Reggie B. Walton and found that EPA and the Army Corps of Engineers acted within their legal authority when they adopted an Enhanced Coordination Process to review mountaintop mining "valley fill" permits in Appalachia (National Mining Association v. McCarthy, 12-5310):

We conclude that the Enhanced Coordination Process memorandum is a procedural rule that EPA and the Corps had authority to enact under the Clean Water Act. Under our case law, we conclude that the Final Guidance is not a final agency action subject to review at this time. We therefore reverse the District Court’s grant of summary judgment and remand to the District Court with instructions to grant judgment for defendants on the Enhanced Coordination Process and to dismiss the challenge to the Final Guidance.

The court also said that a guidance document adopted by EPA and the Corps was not a final agency action and thus not judicially reviewable at this time.

The judges on the panel were Thomas B. Griffith, Brett M. Kavanaugh and Sri Srinavasan. Kavanaugh wrote the decision.

http://www.eswr.com/docs/cts/dcc/12-5310-1502014.pdf  Opinion from ESWR and from D.C. Circuit site

Earthjustice news release

Greenwire story (Jeremy P. Jacobs and Manuel Quiñones)

Charleston Gazette story and Ken Ward Jr.'s Coal Tattoo blog

Rep. Nick Rahall (D-W.V.) slams decision (press release)

Coverage by The Hill newspaper

Earthjustice on Walton's 7/31/2012 decision

Ward's blog entry from Aug. 2, 2012 and right after Walton's decision was issued

Walton will consider four extra-record documents in case (ESWR, 4/20/2012)

Write-up of Walton's thinking in 2011

Related and recent: USGS study finds fish populations affected by mountaintop mining (Study)

For coverage of the D.C. Circuit arguments, which appeared in the latest issue of ESWR, please send an email to poplarav AT gmail.com

Audio of oral arguments