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Appeals court rules out overturn of Spruce veto (Updated)

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A higher court has again reversed the direction of the Spruce Mine mountaintop removal permit in Logan County.

The Spruce mine is among the largest ever proposed in West Virginia and drew attention when the Environmental Protection Agency revoked its permit after it had been approved by the Corps of Engineers.

Last year, U.S. District Judge Amy Berman Jackson in Washington, D.C. overturned the veto, stating that the EPA had overstepped its authority. A ruling Tuesday written by Judge Karen LeCraft Henderson in the U.S. Court of Appeals overturned Jackson's ruling.

"Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corp's specification but instead expressly empowers him to prohibit, restrict or withdraw the specification ‘whenever' he makes a determination that the statutory ‘unacceptable adverse effect' will result," the ruling states. "Using the expansive conjunction ‘whenever' the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time."

Pro-coal politicians and the coal industry decried this ability of the agency to impose a "retroactive veto" of a permit. The appeals court said the way the statute is written, the EPA can only exercise the power to withdraw a permit after it has been completed.

If Berman's ruling, and Mingo Logan Coal's interpretation of the statute were valid, the ruling states, the authority Congress bestowed on EPA to review the permits would be "superfluous."

In the previous ruling, Jackson wrote that the "statute does not give the EPA the power to render a permit invalid once it has been issued by the Corps." Disagreement over the intent of the law has been muddled by language that has been interpreted differently by those on either side of the issue.

"… it is undeniable that the provision in question is awkwardly written and extremely unclear," the ruling states. " ... Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be."

According to the EPA, the massive surface mine would cause too much damage to the environment and threaten the health of the area ecosystem. The permit covers an area of 2,300 acres that would have buried about seven miles of streams.

When Jackson made her ruling, she called the move "a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute."

Tuesday afternoon, Rep. Nick Rahall, D-W.Va., issued the following statement in response to the court ruling:

"Today's decision would open the floodgates to disrupting coal mining in West Virginia and elsewhere by granting the EPA unprecedented and seemingly limitless authority over Clean Water Act 404 permits. The court, in this decision, gives license to the EPA to retroactively veto any Clean Water Act 404 permit ‘whenever' the Administrator deems necessary, rendering all such permits for any range of industrial or construction activities throughout the country completely meaningless.

"This decision undercuts the Clean Water Act authority vested by Congress in the Corps of Engineers and would upend the traditional balance that has existed between the states and the federal government in the permitting process. Today's ruling makes clear that Congressional action will be needed. I will 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."

Rep. Shelley Moore Capito, R-W.Va., said she would continue to "fight tooth and nail" 

"Today's federal appeals court ruling further highlights what Congress is up against in President Obama's war on coal," Capito said. "  Unfortunately, the decision was the wrong one and will deeply affect hardworking West Virginians. The Environmental Protection Agency has continued to overstep its bounds in its efforts to implement the president's anti-energy policies.  Not only will this ruling cost West Virginians hundreds of jobs, but it begs the question: Who is safe?  If the EPA can take back a permit from a coal mine in West Virginia, they can do the same to any business in America."

Rep. David McKinley, R-W.Va., urged the need for legislation to reign in the EPA. 

"In 2011, EPA took the unprecedented action of revoking a permit at the Spruce No. 1 Mine, which had been issued years prior, an action which sent a chilling effect throughout the American economy," said Rep. McKinley.  "If EPA can retroactively pull a permit at a coal mine, what's to stop them from doing so at any construction site or manufacturing plant?" 

"Today's ruling would grant EPA staggering authority to revoke clean water permits after they have already been issued, causing enormous uncertainty, not only in coal mining but all industry."