Following the Money: NEDC's Real Motivation Revealed

Image Source

By: Greg Jackson, Staff Member

A. Overview of Litigation:

Litigation concerning stormwater runoff from the Sam Downs Road and Trask River Road began in September of 2006 when the Northwest Environmental Defense Center ("NEDC") filed a citizen suit, under Section 505 of the Clean Water Act ("CWA"), alleging various CWA violations by a number of private and public defendants.[1] The District Court dismissed the action for failure to state a claim, but was reversed on appeal by the Ninth Circuit.[2] According to the appeals court, sections of the Sam Downs Road and Trask River Road were subject to National Pollution Discharge Elimination Systems ("NPDES") permitting under Section 402 of the CWA.[3]

Following the Ninth Circuit decision, Doug Decker, who replaced Marvin Brown as the Oregon State Forester in 2011, and Georgia-Pacific West, Incorporate, one of the private defendants, appealed to the United States Supreme Court.[4] The Supreme Court granted both writs for certiorari, consolidating the cases and allotting one hour of oral argument.[5] Unfortunately, however, the Friday following oral arguments, the Environmental Protection Agency ("EPA") issued revisions to its stormwater regulations designed to clarify that NPDES permits were not required for stormwater discharges from logging roads.[6] Both the parties and the Supreme Court were aware of the impending revisions prior to oral arguments, and, as a result, arguments focused on the proper action the Supreme Court should now take rather than the merits of the case.[7]

Additionally, the NEDC filed a challenge to the new regulation on January 4th, pursuant to Section 509(b) of the Federal Water Pollution Control Act, the Administrative Procedure Act, and Federal Rule of Appellate Procedure 15(a).[8] While this appears to complicate things further, the petition is merely protective and expressly designed to preserve a challenge to the revision if the Supreme Court determines the final rule is subject to challenge in a court of appeals under 33 U.S.C. § 1369(b)(1).[9] Therefore, the challenge only serves to ensure NEDC an avenue to challenge the revised regulation and should not have a significant impact at this time.

B. Oral Argument: Jeffery L. Fisher, On Behalf of the Respondent (NEDC)

According to Fisher, "in light of recent events, ... the most appropriate course for [the Court was] ... to just simply dismiss [the] ... case as improvidently granted."[10] He argued that under the present circumstances there would be three strong reasons to deny any petition for writ of certiorari.[11] First, the EPA believes its revisions of the rule have undercut the Ninth Circuit's decision.[12] Second, "the case is interlocutory in posture ... we are just on a reversal of a motion to dismiss."[13] Finally, every argument left in the case, including mootness, can effectively be heard on remand and later appealed back to the Supreme Court.[14] Furthermore, Fisher wondered why the Court "would want to touch all this in the first instance, particularly without supplemental briefing" when dismissing and remanding the case would allow the Ninth Circuit to address all the arguments on the revision first.[15]

Perceptively, Chief Justice Roberts pointed out the potential for monetary relief upon dismissal and remand to the Ninth Circuit.[16]

C. Money Motivating NEDC's Action

While Fisher correctly identified the Supreme Court's best course as sending the current case back to the Ninth Circuit, Chief Justice Roberts' comment on the monetary relief is very revealing. It highlights NEDC's true motivation for continuing the current case.

When the EPA issued its revision, NEDC had three options. First, NEDC could view the new regulation as rendering any further action futile and completely drop the suit. Second, the group could solely pursue a challenge action, which it filed in January. Third, NEDC could continue to prosecute the current litigation in hopes of eventually realizing a favorable ruling on the merits.

Both option two and option three allow the NEDC to remain dedicated "to the protection of the environment and natural resources of the Pacific Northwest," its stated goal.[17] The main difference between each option is, however, NEDC's ability to preserve the potential realization of its requested relief, namely a monetary award. In its complaint, NEDC requested, along with equitable relief, civil penalties and costs.[18] Pursuant to the CWA, plaintiffs prosecuting citizen suits may be awarded litigation costs, including reasonable attorneys' fees, if they prevail or substantially prevail in the action.[19] Additionally, the CWA allows an award of civil penalties, not to exceed $25,000 per day per violation, payable to the United States Treasury.[20] Consequently, in order for NEDC to recoup any of its costs in this action from the private defendants, it must prevail in the current action. This seems to play a substantial role in NEDC's decision to pursue option three.[21]

1. Dropping All Legal Action

By dropping all legal action aimed at NPDES permitting for logging roads, NEDC would not long be working to protect the environment or the Pacific West's natural resources.[22] Instead, the private defendants would continue the alleged violations of the CWA and potential negative impacts on the environment.[23] Additionally, without any suit against the private defendants, the recovery litigation costs or assessment of civil penalties would be impossible.[24]

2. Solely Challenging the New Regulation

Here, NEDC would drop the litigation pending before the Supreme Court and only prosecute its filed challenge to the new EPA rule in the Ninth Circuit.[25] This would allow NEDC to continue fighting to protect the environment, but the only compensation available would be litigation costs of the challenge action.[26] Civil penalties could, however, still be assessed against the private defendants if a similar suit was refiled after a successful challenge. At first glance, this appears an unnecessary bifurcation of the issues, but the current action is an interlocutory appeal of a Rule 12(b)(6) motion to dismiss.[27] Thus, even if NEDC prevails in the current appeal and the logging roads are subject to NPDES permitting, a court would still need to determine and award the appropriate penalties and costs.[28] Therefore, two steps are required for NEDC to recover an award in the current litigation, and the litigation costs of the current action is the only real loss imposed by solely pursuing the challenge. Furthermore, considering the complexity of the current appeal, particularly with respect to jurisdiction, pursuing a challenge then refiling would likely be cleaner, if not simpler.[29]

3. Continuing the Current Action

NEDC has chosen to pursue the current action before the Supreme Court.[30] The action will either be dismissed and remanded, as NEDC requested at oral arguments, or ruled on the merits.[31] If the Supreme Court follows NEDC's recommendation and dismisses the suit as improvidently granted, remanding it to the Ninth Circuit, the private defendants will remain involved in the litigation.[32] Consequently, the potential for monetary recovery would also remain, and NEDC could recover its litigation costs and have civil penalties assessed, following a favorable merits ruling. Similarly, if the Supreme Court rules in NEDC's favor on the merits, the group should eventually realize its requested relief, including penalties and costs. If, however, the Court finds for Petitioners, no relief will be possible because NEDC would not have prevailed.[33] In any event, this option keeps potential litigation cost reimbursement alive, unlike the other two.

D. Conclusion

As demonstrated above, continuing to pursue the current litigation is NEDC's only avenue to recover its costs.[34] While completely dropping the suit will not promote any of NEDC's goals, solely pursuing the challenge before the Ninth Circuit would.[35] It allows the group to protect the environment and the Pacific West's natural resources, and, through another lawsuit, could result in receiving the requested relief.[36] Furthermore, given the current appeal's interlocutory nature, this bifurcated approach would not produce any greater litigation.[37] In fact, this option may clear up some complex issues, such as jurisdiction, and lead to cleaner litigation.[38] Instead, however, NEDC has chosen to continue the current appeal, notably the only option for recouping its litigation costs.[39] Thus, a substantial factor in NEDC's decision to continue litigating the action currently before the Supreme Court appears to be monetary. Instead of taking the simpler challenge routes, the group has chosen to unnecessarily prolong complex litigation in hopes of forcing its opponent to foot mounting legal bills. This clear evidence of greed is certainly an uncomfortable reality for an environmental group who would likely be quick to condemn the corporate defendants as malicious profiteers, selfishly subjecting the environment for their own personal gain.
____________________
[1] 33 U.S.C. §1365; First Amended Complaint, Northwest Environmental Defense Center v. Brown, 476 F.Supp.2d 1188 (2007) (No. 06-1270-KI), 2006 WL 3241715.
[2] Northwest Environmental Defense Center v. Brown, 640 F.3d 1063, 1068 (9th Cir. 2011), cert granted, Decker v. Northwest Environmental Defense Center, 133 S.Ct. 22, 133 S.Ct. 23 (2012).
[3] 33 U.S.C. § 1342; Brown, 640 F.3d at 1070, 1087.
[4] Petition for Writ of Certiorari, Decker v. Northwest Environmental Defense Center, 640 F.3 1063 (9th Cir. 2011) (No. 11-338), 2011 WL 4352279 (U.S.); Petition for Writ of Certiorari, Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, 640 F.3d 1063 (9th Cir. 2011) (No. 11-347), 2011 WL 4352287 (U.S.); Doug Decker Selected as New Organ State Forester, Oregon Department of Forestry, http://www.oregon.gov/ODF/Pages/newsroom/newsrelease/2011/NR1105.aspx (last visited Jan. 11, 2013).
[5] Decker v. Northwest Environmental Defense Center, 133 S.Ct. 22 (2012); Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, 133 S.Ct. 23 (2012).
[6] Revisions to Stormwater Regulations To Clarify That an NPDES Permit Is Not Required for Stormwater Discharges From Logging Roads, 77 F.R. 72970-01 (2012).
[7] See Oral Argument Transcript, Decker v. Northwest Environmental Defense Center, (Nos. 11-338, 11-347), available at http://www.supremecourt.gov/oral/_arguments/arguments_transcripts/11-338.pdf.
[8] 33 U.S.C. §1396(b); 5 U.S.C. §551; Fed. R. App. P. 15(a); Petition for Review and Corporate Disclosure Statement, Northwest Environmental Defense Center v. Jackson, No. 13-70057, at 2 (9th Cir. 2013), available at http://environblog.jenner.com/files/click-here-10.pdf.
[9] 33 U.S.C. § 1369(b)(1) (requiring challenges to regulations promulgated under the CWA to be challenged within 120 days of signing by the EPA Administrator); Id. at 3.
[10] Oral Argument Transcript, supra note 270 at 28:24-29:2.
[11] Oral Argument Transcript, Decker v. Northwest Environmental Defense Center, (Nos. 11-338, 11-347) at 29:3-7, available at http://www.supremecourt.gov/oral/_arguments/arguments_transcripts/11-338.pdf.
[12] Oral Argument Transcript, supra note 11 at 29:7-10. 
[13] Oral Argument Transcript, supra note 11 at 29:11-13.
[14] Oral Argument  Transcript, supra note 11 at 29:13-21.
[15] Oral Argument Transcript, supra note 11 at 39:22-40:1.
[16] Oral Argument Transcript, supra note 11 at 29:22-30:2. 
[17] Lewis & Clark Law School: Northwest Environmental Defense Center, https://law.lclark.edu/centers/northwest_environmental_defense_center/about_nedc/ (last visited Jan. 20, 2013).
[18] First Amended Complaint at VII: A-H, Northwest Environmental Defense Center v. Brown, 476 F.Supp.3d 1188 (D. Or. 2007) (No. 06-1270-KI), 2006 WL 3241715.
[19] 33 U.S.C. §1365(d). 
[20] 33 U.S.C. 1319(d); Friends of the Earth v. Archer Daniels Miland Co., 780 F.Supp. 95, 101 (N.D. NY 1992).
[21] See Discussion infra Part B.
[22] See Northwest Environmental Defense Center website, supra note 17.
[23] See First Amended Complaint, supra note 1.
[24] 33 U.S.C. §§ 1319(d), 1365(d).
[25] See Petition for Review and Corporate Disclosure Statement, Northwest Environmental Defense Center v. Jackson, No. 13-70057, (9th Cir. 2013), available at http://environblog.jenner.com/files/click-here-10.pdf.
[26] 33 U.S.C. § 1369(b)(3).
[27] See Oral Argument Transcript, supra note 11, at 30; Northwest Environmental Defense Center v. Brown, 640 F.3d 1063, 1068 (9th Cir. 2011), cert granted, Decker v. Northwest Environmental Defense Center, 133 S.Ct. 22, 133 S. Ct. 23 (2012).
[28] Oral Argument Transcript, supra note 11 at 23:3-18.
[29] See Northwest Environmental Defense Center v. Brown, 640 F.3d 1063, 1068 (9th Cir. 2011), cert granted, Decker v. Northwest Environmental Defense Center, 133 S.Ct. 22, 133 S.Ct. 23 (2012); Brief for Petitioners, Decker v. Northwest Environmental Defense Center, (No. 11-338), 2012 WL 3755626 (2012); Brief for Respondents, Decker v. Northwest Environmental Defense Center, (Nos. 11-338, 11-347), 2012 WL 4810210 (2012); Brief for the United States as Amicus Curiae Supporting Petitioners, Decker v. Northwest Environmental Defense Center, (Nos. 11-338, 11-347), 2012 WL 3864278 (2012).
[30] See Discussion infra Part B.
[31] See Discussion infra Part B; also see Oral Argument Transcript, supra note 11 at 18-28 (Arguments by Malcolm L. Stewart, arguing for the United States as amicus curiae in support of Petitioners, in favor of mootness was met with little enthusiasm by the Court, suggesting a dismissal for mootness is unlikely).
[32] See Oral Argument Transcript, supra note 11.
[33] 33 U.S.C. § 1365(d).
[34] See Discussion infra Part C:3.
[35] See Discussion infra Parts C:1 & C:2.
[36] See Discussion infra Part C:2. 
[37] See Discussion infra Part C:2.
[38] See Discussion infra Part C:2.
[39] See Discussion infra Part C:3.

The Worst Anti-Environmental Bill in History?

Image Source 

By: Max Bridges, Staff Member

Before leaving for a two-month recess this September, House Republicans passed the dirty coal package, H.R. 3409, by a vote of 233-175.[1] Also titled the "Stop the War on Coal Act of 2012," the bill would undermine landmark environmental laws and adversely affect public health, the economy, and the environment.[2] The bill is not expected to be taken up in the Senate and is also facing a presidential veto,[3] but it raises enormous concerns about the interests of our Representatives. Congressmen are elected to protect the interests of the American people, but House Republicans are more concerned with protecting King Coal.

The "Stop the War on Coal Act of 2012" is comprised of five bills each designed to assault America's cornerstone environmental protections. The bill is so detrimental to public health that some have called it the "single worst anti-environmental bill to be considered in the House."[4]

Title I of H.R. 3409 blocks the Department of Interior (DOI) from issuing any new standard for coal mining or mine reclamation until 2014 and would eliminate DOI's ability to designate an area unsuitable for mining.[5]

Title II repeals EPA's scientific finding that greenhouse gasses endanger public health and the environment, thereby codifying the House's denial of climate science.[6]

Title III would overturn 40 years of clean air policy by requiring the EPA to consider industry costs when determining what level of air pollution is "safe."[7] It would also block landmark Clean Air Act public health regulations, such as the Mercury and Air Toxics Standard, which the EPA estimates "will prevent as many as 11,000 avoidable premature deaths and 4,700 heart attacks annually. The annual value of the health benefits from these rules alone is estimated to be as much as $90 billion."[8]

Title IV would eliminate EPA's authority to set minimum federal standards to ensure the safe disposal of coal ash by allowing the States to create their own programs without having to meet any standard for protecting public health.[9] Perhaps Congress needs to be reminded of the Martin County Coal Spill. In October 2000, a coal slurry impoundment broke through an underground mine shaft and spilled more than 300 million gallons of black, toxic sludge into the waters of Kentucky.[10] The spill was 30 times the size of the Exxon Valdez disaster. But we shouldn't need to remind Congress; they represent us, right?

Finally, Title V would roll back key provisions underpinning the Clean Water Act including EPA's authority to veto a "valley fill" permit based on environmental concerns. House Republicans believe this bill would prevent EPA over-regulation, but others disagree. As Rep. Jared Polis (D-Colo.) said, "Let's not fool ourselves, the bill before us today isn't just about the role of federal government, the bill isn't just a push for state sovereignty; rather, this bill would satisfy two very niche special interests at the cost of the American public. This bill is designed to benefit mountaintop coal mining companies and large factory farms."[11]

By passing H.R. 3409, House Republicans showed their willingness to undercut key environmental protections that protect our safety and public welfare. These Congressmen clearly do not represent the interests of the American people. Instead, they represent Big Coal. This absurdity is further evidenced by recent political contributions. In 2012 alone, Republicans received 89 percent of the coal industry's campaign contributions (amounting to $5,765,078).[12] The chair of the Energy and Commerce committee has received $60,000 from major utilities and the coal industry. Bill co-sponsor Rep. David McKinley (R-WV) is the top recipient of coal cash for 2012, receiving more than $200,000.[13]

We elect Congress to protect the will of the people, but they are more concerned with protecting the coal industry. Let's hope our representatives begin to follow the words of John Adams, "Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men."[14]
_________________________
[1] The Library of Congress, Bill Summary & Status, 112th Congress (2011-2012), H.R. 3409, Thomas, http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.03409: (last visited Oct. 21, 2012).
[2] Statement of Administration Policy, Executive Office of the President, (Sept. 19, 2012) http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr3409r_20120919.pdf.
[3] Id.
[4] An Assault On America's Cornerstone Environmental Protections, Committee on Energy and Commerce, Democratic Staff (Sept. 2012), http://democrats.energycommerce.house.gov/sites/default/files/documents/Short%20HR%203409%20Fact%20Sheet_1.pdf.
[5] Id.
[6] Id.
[7] Id.
[8] Executive Office of the President, supra note 2.
[9] Committee on Energy and Commerce, Democratic Staff, supra note 4.
[10] Erik Reece, Lost Mountain 124 (2006).
[11] Robin Bravender, House Votes to Block EPA on Water Pollution, Politico (Aug. 13, 2011), http://www.politico.com/news/stories/0711/58939.html#ixzz29rptxZvv.
[12] Coal Mining: Long-Term Contribution Trends, OpenSecrets.org, http://www.opensecrets.org/industries/totals.php?cycle=2012&ind=E1210 (last visited Oct. 21, 2012).
[13] Rebecca Leber, The GOP's 'War on Coal' Myth, Brought to You by Millions in Coal Cash, ThinkProgress (Sep. 20, 2012), http://thinkprogress.org/climate/2012/09/20/873851/the-gops-war-on-coal-myth-brought-to-you-by-millions-in-coal-cash/?mobile=nc.
[14] John Adams, The Works of John Adams, 225 (1851) available at http://files.libertyfund.org/files/2012/Adams_1431-04_Bk.pdf.

When are Wetlands Navigable Waters?

Image Source

By: Joe Schuler, Staff Member 

In May 2012, the Supreme Court denied cert in a case from the Third Circuit addressing that very question.[1] In so doing, it left intact a 3-2 split among the circuit courts over the proper application of a prior Supreme Court ruling on the issue.

At issue is the Clean Water Act, which prohibits discharge of certain pollutants into “navigable waters” without a permit issued by the Army Corps of Engineers.[2] The Act defines “navigable waters” as “the waters of the United States.”[3] The Corps interprets the definition broadly, asserting its jurisdiction over traditional navigable waters, their tributaries, as well as adjacent wetlands.[4]

That interpretation has led to challenges by property owners asserting that the Corps exceeded the scope of its authority under the Act. The Supreme Court considered that claim in Rapanos v. United States.[5] A majority of the court was unable to agree on a proper test to establish when a wetland should be included in the scope of the Act as “waters of the United States,” leading to a 4-1-4 split.

In the court’s plurality opinion, four justices expressed the view that the approach of the Corps was overly broad.[6] However, the justices recognized the difficulty of defining the precise place where waters end and adjacent wetlands begin.[7] Accordingly, they reasoned that only wetlands with a “continuous surface connection” to bodies of water that are “waters of the United States” can be covered by the act as “adjacent waters.”[8]

Justice Kennedy wrote an opinion in which he concurred with the judgment of the court, but expressed that the plurality’s opinion was too restrictive.[9] He believed jurisdiction of the Corps over a wetland should be upheld whenever there is a “sufficient nexus” between it and other “waters of the United States.”[10] Four dissenting justices would have deferred to the Corps, finding their approach to be “a quintessential of the Executive’s reasonable interpretation of a statutory provision.”[11]

Since no majority agreed on a standard of analysis, lower courts have been left to wrestle with the appropriate test to determine when a wetland may be considered “navigable waters” within the meaning of the Clean Water Act. The Seventh and Eleventh Circuits ruled that Justice Kennedy’s “sufficient nexus” test to be the applicable test, finding that it was the narrowest position on which a majority of the justices would agree.[12] The Donovan court held that either the plurality’s “continuous surface connection” test, or Justice Kennedy’s “sufficient nexus” test would be sufficient to establish jurisdiction by the Corps, joining the First and Eighth Circuits.[13] This approach was suggested by Justice Stevens’ dissent in Rapanos, in which he declared that the four dissenting justices would join a decision where jurisdiction was upheld on either ground.[14] Therefore, either ground would enjoy support from a majority of the court.

Given that the Supreme Court declined to take up the Donovan case, it does not appear that the Court is in any hurry to resolve the split among the circuits. It seems then, that at least for the foreseeable future, the answer to the question of when a wetland is navigable waters will depend on its location.

---

[1] United States v. Donovan, 661 F.3d 174 (3d Cir. 2011), cert. denied 132 S. Ct. 2409 (2012).

[2] 33 U.S.C. § 1311(a) (1995); 33 U.S.C. § 1342(a) (2008).

[3] 33 U.S.C. § 1362(7) (2008).

[4] 33 C.F.R. § 328.3 (1993).

[5] Rapanos v. United States, 547 U.S. 715 (2006).

[6] Id. at 739.

[7] Id. at 740.

[8] Id. at 739.

[9] Id. at 778.

[10] Id. at 779.

[11] Rapanos v. United States, 547 U.S. 715, 788 (2006).

[12] United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7^th Cir. 2006); United States v. Robison, 505 F.3d 1208, 1221 (11^th Cir. 2007).

[13] Donovan, 661 F.3d at 181-82.

[14] Rapanos, 547 U.S. at 810. 

EPA Exceeds Its Authority By Revoking Mountaintop Removal Permit

Image Source

By: Raabia Wazir, Staff Member

Environmentalist cheered in January 2011 when the U.S. Environmental Protection Agency (EPA) revoked one of the largest mountaintop removal permits ever authorized in Appalachia on grounds that the mine would result in unacceptable damage to streams and wildlife and violate the Clean Water Act.[1] The US Army Corps of Engineers originally issued the §404 permit for the Spruce No. 1 mine project in Logan County, W.V., in January 2007 and the Mingo Logan Coal Company (a subsidiary of Arch Coal, Inc.) began construction shortly thereafter.[2] The permit covered 2,278 acres and allowed for the burial of approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil.[3]

The revocation of the permit by the EPA marked the first crackdown by the Obama administration to limit mountaintop removal mining by retroactively vetoing old permits. It is also only the second time that the agency has canceled a water permit for a project of any kind after it was issued since the Clean Water Act was passed by Congress in 1972.[4] The decision led to an uproar from the industry and its supporters, many expressing fear that all mine sites were now vulnerable to losing their permits.[5]

In March 2012, the Federal District Court of District of Columbia ruled that the agency exceeded its authority under the Clean Water Act by revoking the permit. Judge Amy Bergman Jackson wrote in her opinion, “The EPA resorts to magical thinking. It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and

consideration. Poof!”[6] She further argued that permit revocation is unreasonable because it “[sows] a lack of certainty into a system that was expressly intended to provide finality." The Judge continued, "Every construction project involving waterways could be subject to an open-ended risk of cancellation.”[7]

The agency has yet to announce whether they plan to appeal the ruling.

_______________________________________________

[1] Kate Sheppard, EPA Halts "Destructive and Unsustainable" Mining Operation, Blue Marble, Jan. 13, 2011, http://motherjones.com/blue-marble/2011/01/epa-rejects-spruce-no-1-permit.

[2] Spruce No. 1 Mine , U.S. Environmental Protection Agency. (April 2, 2012, 5:00 PM), http://www.epa.gov/region03/mtntop/spruce1.html

[3] Final Determination of the U.S. Environmental Protection Agency Pursuant to § 404(c) of the Clean Water Act  Concerning the Spruce No. 1 Mine, Logan County, West Virginia (2011), available at: http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/upload/Spruce_No-_1_Mine_Final_Determination_011311_signed.pdf

[4] Stephen Power & Kris Maher, EPA Blasted as It Revokes Mine's Permit, Wall Street Journal, Jan. 14, 2011, available at: http://online.wsj.com/article/SB10001424052748703583404576079792048919286.html.

[5] Erik Eckholm, Project’s Fate May Predict the Future of Mining, N.Y. Times, July 14, 2010, available at:  http://www.nytimes.com/2010/07/15/us/15mining.html.

[6] Mingo Logan Coal Co. Inc. v. U.S. E.P.A., No. 10–0541, 2012 WL 975880 (D.D.C. March 23, 2012), available at: http://wvgazette.com/static/coal%20tattoo/SpruceMineRuling.pdf

[7] Id.

Kentucky Coal and Governor Beshear file suit

By Bethany Baxter, Staff Member

Under the Clean Water Act (CWA) the EPA has authority to review state issued permits pursuant to §402(d)(2). 33 U.S.C.A. §1342 (d)(2). Kentucky, in assuming responsibility for implementing the CWA, must provide the EPA with notice of permits the state plans to issue, and the EPA may then object to the requirements defined by the state in the permit. Id.

Historically the EPA has been reluctant exercise this authority. However, an EPA report published in April of this year has prompted the Agency to utilize §402 authority in imposing heightened requirements specifically affecting mining permits under the CWA. The EPA released “Detailed Guidance for Appalachian Coal Streams,” in which the EPA links coal mining activity to increases in conductivity levels in waters. 75 Fed. Reg. 18,500 (April 1, 2010). The report sets benchmarks for conductivity levels, based on scientific finding that increased conductivity adversely affects aquatic life in streams. The report explicitly states that the report should be used to “clarify EPA’s expectations,” and states that the EPA expects that Regions 3, 4, and 5 “begin using this interim final guidance immediately in your review of Appalachian surface coal mining activities.” 75 Fed. Reg. 18500 at 1-2.

Kentucky’s narrative water quality standards state, “total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.” 401 KAR 10:031, §4(1)(f). Based on this standard and the newly released report, the EPA rejected several Kentucky permits, finding that the Kentucky Division of Water failed to consider emerging science regarding coal mining affects on water, and failed to incorporate available science concerning conductivity. The Kentucky Coal Association (KCA) filed suit last week against the EPA and Administrator Jackson, claiming that scientific underpinnings of the report are seriously flawed and hence the Agency’s reliance on the report is arbitrary and capricious. See complaint, at 19-20. KCA publically called EPA action an “illegal agenda to end coal mining in Kentucky,” and Governor Beshear, who joined the suit stated, “the arbitrary and unreasonable decisions being made by the EPA threaten to end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.” Dori Hjalmarson, Coal industry, Beshear administration sue EPA over coal mining permits, Oct 19, 2010, Lexington Herald Leader. Both the National Mining Association and the state of West Virginia filed similar suits.

Coal mining is central to the cultural and economic identity of Kentucky. Recently industry practices, particularly mountain top removal, have received much critical attention on the national level. The EPA, in rejecting state permits, is more proactively addressing water quality and pollution associated with coal mining. It is no surprise that the industry and state are resistant. It will be interesting to see how this suit reflects the broader coal debate and tensions between economic growth and environmental protection.

To review the Kentucky Coal Association’s complaint: http://www.kentuckycoal.com/documents/Complaint.pdf

To read the EPA’s “Detailed Guidance for Appalachian Coal Stream:”
http://www.epa.gov/owow/wetlands/guidance/pdf/appalachian_mtntop_mining_detailed.pdf

Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration

By: Laura L. Mays, Former Staff Member; This Comment was originally published in JNREL Vol. 20 No. 1.

Abstract by: Andrew Leung, Staff Member

In deciding Northern Plains Resource Council v. Fidelity Exploration, 325 F.3d 1155 (9th Cir. 2003), the Ninth Circuit held that naturally occurring groundwater in an unaltered state is a pollutant under the Clean Water Act (CWA) and should be treated accordingly. "Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration" examines the court's analysis and explains the probably harmful effects that this holding will have on the coal industry in the Commonwealth of Kentucky and the country at large.

The "pollutant" in question is groundwater removed from natural aquifers through the harvesting of Coal-Bed Methane (CBM). CBM is a naturally occurring deposit of methane that exists in situations where coal is saturated with groundwater, thus trapping methane inside the coal. When CBM deposits are tapped, the miners must also remove the groundwater deposits in order to achieve the ideal pressurization at the mining site.

In Fidelity Exploration, Fidelity Exploration and Development Company extracted CBM from the Powder River Basin in Montana for commercial sale. The groundwater that was brought to the surface was transported to and deposited in the nearby Tongue River. It should be noted that the dissolved solids level in the groundwater was nearly triple that of the river. When this fact was publicized, The Northern Plain Resource Council (NPRC) filed citizen suit in the District Court for the District of Montana. The district court granted summary judgment for Fidelity, but NPRC timely appealed to the Ninth Circuit.

The Clean Water Act proscribes that transport and discharge of a pollutant from a "point source" into "navigable waters" is unlawful. In the case at hand, the "point source" is the underground aquifer from which the CBM was harvested, and the "navigable wate[r]" is the Tongue River. Although defendant Fidelity noted that the water was disposed of in its natural state, the Ninth Circuit found that CBM water was "industrial water" because it was produced as a byproduct of an industrial activity. Ironically, the court conceded that the same water was generally potable, and could be used for agricultural means.

This holding effectively dissuades coal companies from exploiting the CBM deposits that often accompany the coal deposits that they already mine. By imposing this obstacle, coal companies are not likely to change their practice of allowing CBM to escape into the atmosphere, where it contributes to global warming. Fidelity Exploration serves as one of those rare instances where a strict protectionist approach to the environment via literal interpretation of statutes may actually serve to cause greater harm than good.

In a recent decision...

...the United States Supreme Court upheld the authority of the United States Army Corps of Engineers (the Corps) to issue permits for the discharge of slurry, a by-product of the mining technique referred to as “froth flotation.” Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009). Overturning the Court of Appeals for the Ninth Circuit, the Supreme Court determined that slurry is, in fact, “fill material” as defined by the Clean Water Act (the CWA or the Act), and, in accordance with the CWA, the disposal of such material shall be regulated by the Corps without regard to the strict limitations imposed by the Environmental Protection Agency (the EPA) for the disposal of pollutants. Id. at 2463.

The defendant in the case, Coeur Alaska, Inc. (Coeur Alaska), attempted to revitalize an 80-year-old gold mine in Juneau using the “froth flotation” technique whereby the mine’s crushed rock would be mixed with certain chemicals, resulting in the separation of valuable minerals. Id. at 2463-2464. One of the considerations in developing this plan, as is common in most mining operations, was what to do with the mixture of crushed rock and chemicals, referred to as slurry, once the valuable minerals were extracted. Coeur Alaska determined that the most cost-efficient and environmentally-friendly method of disposal would be to deposit the slurry into a nearby lake. Id. Upon approval by the Corps to implement its plan, several environmental activist groups filed suit against Coeur Alaska alleging that the mining company did not comply with the CWA. Id. at 2463.

The Supreme Court’s decision was not a difficult one as the language of the CWA and the regulations that accompany the Act clearly give the Corps the authority to issue permits for the discharge of slurry. However, the Appalachia Restoration Act, which was introduced in the Senate in March, 2009, proposes to change the definition of “fill material” to exclude slurry. S. 696, 111th Cong. (2009). Although no major congressional action has been taken, the Bill presents another potential challenge for companies like Coeur Alaska in the development of their mining operations.

The following post was written by staff member Meghan Jackson.