Judge Ruling in EPA Lawsuit May Have Few Practical Implications

by Erica Peterson on October 7, 2011

A judge has ruled with the coal industry in a lawsuit against the Environmental Protection Agency. It’s a victory for the industry, but the decision could have little practical meaning for Kentucky’s coal mines.

The judge ruled the EPA overstepped its authority when it instituted an “Enhanced Coordination Procedure” in 2009 to evaluate permits for coal mines. According to the Clean Water Act, the authority for evaluating permits for valley fills—which are used in mountaintop removal mining—lies with the Army Corps of Engineers.

The decision was lauded by the coal industry and coalfields politicians. But Tom FitzGerald of the Kentucky Resource Council says it could backfire, because the EPA still has final veto power over the permits.

“And the challenge to this Enhanced Coordination Process may result in EPA not having the ability to negotiate with mine operators to reduce their impacts and may in fact result in EPA vetoing more of these applications outright,” he said.

Kentucky Department for Environmental Protection Commissioner Bruce Scott agrees.

“We may actually see more vetoes than we did under the [Enhanced Coordination Process], which could be an irony of sorts, as a result of this ruling,” Scott said.

Kentucky wasn’t directly involved in the lawsuit brought by the National Mining Association against the EPA. When politicians talk about ‘suing the EPA,’ they’re referring to a second lawsuit that’s expected to be decided next spring.

Bruce Scott says part of that is about a new EPA policy that requires a numeric standard for water conductivity. But he says there are also issues with a final guidance document the agency released recently, and some Kentucky permits that the EPA objected to.

“We proposed permits consistent with what we believe the final guidance was but the EPA nonetheless objected, so we’re going to be in discussions with USEPA about that and why they’ve taken that position in light of the fact that the new guidance accommodates some of these alternative approaches.”

The second lawsuit objects to the process the EPA took with the guidance, arguing it should have gone through a public notice and comment period.

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