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Bewig writes: "Despite a recent study showing that mountaintop removal coal mining - in which coal companies literally remove the tops of mountains, dump the tons of debris into nearby streams and then strip mine the underlying coal - causes children born nearby to suffer higher rates of birth defects, a federal district judge last week held that the Environmental Protection Agency (EPA) could not revoke a permit for one such large project."

A federal judge has ruled that the EPA could not revoke the permit for a mountaintop removal project.(photo: Zuma Press)
A federal judge has ruled that the EPA could not revoke the permit for a mountaintop removal project.(photo: Zuma Press)



Judge Overrules EPA Denial of Mountaintop Removal Coal Permit

By Matt Bewig, AllGov

30 March 12

 

espite a recent study showing that mountaintop removal coal mining - in which coal companies literally remove the tops of mountains, dump the tons of debris into nearby streams and then strip mine the underlying coal - causes children born nearby to suffer higher rates of birth defects, a federal district judge last week held that the Environmental Protection Agency (EPA) could not revoke a permit for one such large project.

Arch Coal had received approval for the permit from the EPA in 2007, during the administration of President George W. Bush, but EPA in January 2011 revoked the permit, marking the first time the agency had ever done so. EPA concluded that the Spruce No. 1 mine, which would be the largest mountaintop removal in West Virginia history, would have dumped 110 million cubic yards of coal mine waste into streams; buried more than six miles of high-quality streams in one county; polluted downstream waters as a result of buried streams; and degraded area watersheds, thus killing wildlife and adversely impacting other species.

Arch Coal sued the EPA for the permit revocation, and Judge Amy Berman Jackson, who was appointed to the federal bench by President Obama in 2011, held that EPA had exceeded its authority. Jackson found that the statute contemplated a single permitting process with a definite endpoint, so that once EPA issues a permit it cannot later revoke it; otherwise companies would never know if a given permit was truly final.

The ruling's impact on future EPA decisions regarding mountaintop removal, including more than 100 pending mountaintop removal permits, is yet to be seen, although the knowledge that permits cannot be revoked may provoke deep thought before their issuance.

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+28 # nice2blucky 2012-03-30 17:45
So once an industry has its foot in the door, whether by one administration' s corruption or questionable, arbitrary decisions made in spite of arguments that call for restraint or better judgment, by conflicted or incompetent appointees, or just poor decisions that are based upon flawed or incomplete information ... once a decision has been made it is set in stone? What is the recourse for a mistake? None, but to choke on it? Out of fairness?

So it's more important that business can have peace of mind once they've received approval than to ensure environmental quality and healthy communities? And it is to be assumed that decisions by permitting agencies are irrevocable regardless of circumstance?

Mustn't there be continuity of principle within an agency to maintain such confidence in agency determinations, so much so, as to base judicial rulings solely upon initial decisions? And doesn't the fact that the EPA in 2011 differs with the agency in 2007 demonstrate that continuity of principle does not exist?

It seems a dereliction of judicial process to maintain that regardless of circumstance, that for the sake of -- what? -- businesses' peace of mind (in regard to the permitting process) that there are to be no considerations after the fact?

It's nice in theory, but if anything this is a bad precedent. There are always obstacles, not only during the permitting process, but through completion of projects, and sometimes after.
 
 
+4 # Stephanie Remington 2012-03-31 04:40
I agree with everything except for the part about its being "nice in theory." I don't even give it credit for that.
 
 
+12 # Activista 2012-03-30 20:09
federal district judge - tyranny/corrupt ion of judges - totalitarian police state.
We need regime change!
 
 
+2 # wantrealdemocracy 2012-03-31 09:47
All three branches of our government are corrupt. They have been purchased by the top 1%. Regime change is needed. We need to attempt to have the revolution peacefully, and first try to make voting count by NOT voting for ANYONE now in office. Sweep them out of Congress! Join Occupy. If that doesn't work. Things will get very dangerous.
 
 
+23 # kyzipster 2012-03-30 20:58
Is this judge suggesting that the government never makes mistakes?
 
 
+10 # BobbyLip 2012-03-31 00:08
So this judge believes there is no way to rectify a regulatory error. Once again the comfort of the company outweighs the public good. No surprise that the Senate Republicans let this Obama nomination come up for a vote. They must have had an inkling that she was their kind of judge.
 
 
+7 # Stephanie Remington 2012-03-31 04:38
One of the main reasons I keep hearing for supporting Obama in this election is because of his supposedly better judicial appointments.

This disgrace of a judge was appointed by Obama.
 
 
+9 # tedrey 2012-03-31 05:24
Any permit approved for mountain top removal (or anything else, actually) should contain a clause that it is good only while certain environmental conditions are met. If they are not, the permit becomes void, and the holders of the permit are personally responsible for all specified deleterious effects. How does that sound?
 
 
+13 # RMDC 2012-03-31 05:44
Big corporations like coal mining can go "judge shopping" in order to find the weakest link. They have the lawyer power to get a case transferred into the court of a sympathetic judge. No ordinary person can do that but our "brothers and sisters" -- our corporate persons -- do it all the time.

Mountaintop removal just like fracking is a bad technology and should be banned altogether. It is far too destructive to ever permit. The US needs to convert to renewable energy sources so that so much coal is not needed to generate electricity. Many other nations are doing that. Why are we so slow?

West Virginia is a beautiful state. The mountains are rugged and the streams beautiful and once were clean. Why destroy that?
 
 
+2 # Glen 2012-03-31 06:25
Once again the devil takes his due. Anger is building throughout this country and world due to such indifference on the part of governments and agencies.

Communities will be forced to protect their own turf and it isn't going to be easy. Between this environmental indifference, surveillance, increasing numbers of repressive laws, yes - and Activista is correct as usual - the U.S. is heading for totalitarian rule.

Will there be anything left to rule over?
 
 
+3 # SouthBrun 2012-03-31 07:29
The judge in this case is bucking for a yet to be dtermined seat on The Supreme Court. Imagine That!
 
 
+2 # dick 2012-03-31 07:44
Be careful what you wish for. None of us want endless EPA flip flops. The judge's actions will trigger review of the process. She has done her part. Now, appropriate scrutiny may result in an improved process, better outcomes. We can't expect every single decision to go our way. The EPA & judge brought some sunlight, some public attention where it is needed. Maybe OCCUPY can "Save the Mountain." Maybe a trade can be worked out. Popular resistance may influence the Co. Many ways to skin a Cat.
 
 
+4 # Regina 2012-03-31 11:52
The countryside will be poisoned and destroyed before any such scrutiny gets into gear. As for skinning cats, the cats being skinned are the people living in the industrial wasteland that once was scenery.
 
 
+8 # tedrey 2012-03-31 09:52
But look at it this way. A federal judge has ruled that "once EPA issues a permit it cannot later revoke it; otherwise companies would never know if a given permit was truly final."
So EPA's obvious response should be "All right, from now on no permit will be awarded without written-in conditions, the non-fulfillment of which will lead to the automatic revocation of the permit." This is not only legal, but quite standard in other contracts, and should be quite a popular move, except to corporations.
 
 
+4 # SouthBrun 2012-03-31 10:34
Yes, it would be like revoking a Doctor's license for some wrong doing.
 
 
+5 # JJS 2012-03-31 17:46
Exactly the point SouthBrun and tedrey, shouldn't violations of environmental laws (there are environmental laws aren't there?) enforced by a regulatory agency such as the EPA show cause to revoke a permit?

I agree issuing and revoking flip flopping is not a good idea, but once you have a permit for mining it is a permit for mining not destroying the environment and poisoning people.

I think that the EPA needs to be observing and monitoring these companies with permits early and often because, as we know, this mnt top removal is nasty business
 
 
+6 # jwb110 2012-03-31 11:39
Lobbying trump quality of life in this country. Shame, shame , shame.
 

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