Mar 042015

Three House members have reintroduced a bill to prohibit EPA from retroactively revoking Clean Water Act Section 404 permits, as the agency did with the Spruce Mine in West Virginia.

That decision was recently upheld by federal courts in Washington, D.C.

The bill, H.R. 1203, was introduced by three Republican congressmen from West Virginia -- Reps. David McKinley, Alex Mooney and Evan Jenkins. The text of the bill is not yet available.

According to an article in the West Virginia Record, "McKinley introduced similar legislation in the previous two Congresses."

In the last Congress, McKinley's bill made it out of the House Transportation and Infrastructure Committee but did not get a vote in the full House.

Apr 252013

"W.Va. members of Congress promise action against EPA" is the headline in the West Virginia Record, whose article noted that 80 percent of the state's congressional delegation had posted press releases criticizing the D.C. Circuit's decision that said EPA had the authority to partially revoke a permit for the Spruce Mine. (Only Jay Rockefeller appears not to have weighed in.)

Rep. Nick "Joe" Rahall said he would "soon be reintroducing the Clean Water Cooperative Federalism Act, legislation the House approved last year to prevent the EPA from using the guise of clean water as a means to disrupt coal mining as they have now done with respect to the Spruce Mine in Logan County, West Virginia."

Coverage of the case includes this account from James Bruggers of the Louisville Courier-Journal, who notes that the day before the D.C. Circuit ruling, the Cincinnati-based Sixth Circuit "invalidated a 2007 version of a streamlined permit used by the Corps to authorize the dumping of coal-mining waste into hundreds of miles of Appalachian streams." (Corps permit info.)

Conclusion of Sixth's ruling:

Though we generally give greatest deference to an agency’s “complex scientific determination[s] within its area of special expertise,” Balt. Gas & Elec. Co., 462 U.S. at 103, we may not excuse an agency’s failure to follow the procedures required by duly promulgated regulations, see, e.g., Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43. During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper’s demands.

This policy argument misses the point. After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

We hereby invalidate permit 21 as arbitrary and capricious, 5 U.S.C. § 706(2)(A), but stay this ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.


  • Sen. Joe Manchin
  • McKinley Criticizes Court Decision in Spruce Mine Case (from Rep. David McKinley, R-WV-1) (4/23/13)
    Urges Legislative Action to Stop EPA Authority
  • Rahall: Unprecedented Authority Given to EPA in Spruce Mine Decision (Rep. Nick Rahall, D-WV-3)
  • Capito Condemns Federal Appeals Ruling on EPA Overreach (Office of Shelley Moore Capito, R-WV-2)
  • Sierra Club, et al.: "The decision reverses the lower court’s contrary ruling, and is a major blow to the coal industry’s attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia."
  • National Mining Assn.: "By upholding the Environmental Protection Agency's view that it has unbounded authority to retroactively revoke permits issued by another federal agency, the U.S. Court of Appeals for the District of Columbia has pulled the regulatory rug out from under the feet of U.S. companies, eliminating the certainty of permits and upending an already complicated permitting process. As a result, a cloud of uncertainty now hangs over any project and companies will no longer have the assurance required to encourage investments, grow our economy and create U.S. jobs."
Aug 202012

We were asleep at the switch Friday, or we would have had this out sooner. The D.C. Circuit, in a long-awaited decision, ruled that the Fish and Wildlife Service did not err in its decision to delist the West Virginia Northern Flying Squirrel (Friends of Blackwater v. Salazar, 11-5128, D.C. Cir., 8/17/2012)

Opinion, and Judge Emmet Sullivan's decision in the district court. And here's a link to the Northeast Region's WVNFS page.

We'll have more in a bit, but here's the first paragraph of the decision, with Circuit Judge Douglas Ginsburg opining for the majority (he was joined by Circuit Judge Brett Kavanaugh, while Circuit Judge Judith Rogers dissented):

The Secretary of the Interior appeals the district court’s grant of summary
judgment to the Friends of Blackwater et al. The district court held the Fish
and Wildlife Service, an agency in the Department of the Interior, violated the
Endangered Species Act by removing the West Virginia Northern Flying Squirrel
from the list of endangered species when several criteria in the agency’s Recovery
Plan for the species had not been satisfied. We hold the district court erred by
interpreting the Recovery Plan as binding the Secretary in his delisting decision.

Because we also reject the Friends’ alternative arguments that the Service’s action
was arbitrary, capricious, and contrary to law, we reverse the judgment of the
district court.

Glaucomys sabrinus fuscus (Image from D.C. Circuit opinion)

Coverage in the Charleston Gazette by the redoubtable Ken Ward Jr. Here's an excerpt from his piece:

"Formally called the Virginia northern flying squirrel but better known as the West Virginia northern flying squirrel, the subspecies is as old as the mastodons. It lives in clusters atop the highest Appalachian peaks of West Virginia and adjacent Highland County, Va. About 10,000 years ago, it became isolated from other northern flying squirrel species when ice sheets covering North America receded.

"The so-called flying squirrels do not actually fly, but glide using a furry, sheetlike membrane along the sides of their bodies."

Friends of Blackwater's WVNFS page