The EPA’s M.C. Escher regulatory approach
That’s what has happened at the proposed Spruce No. 1 mountaintop removal mine in Logan County.
First, a brief history.
In 2007, the U.S. Army Corps of Engineers, which has jurisdiction over waterways, issued a permit under the Clean Water Act for the mine, approving disposal sites for rocks and dirt left behind by the mining. The EPA raised no objection at the time.
However, four years later the EPA stepped in, prohibiting discharge into two of the nearby streams, thus blocking the mine. The Spruce No. 1 owners appealed, and U.S. District Judge Amy Berman Jackson ruled that the EPA had overstepped its bounds.
“The Court finds nothing in the legislative history… that would show an intent by Congress to confer permit revocation authority on the Administrator of the EPA,” Jackson wrote. She accused the EPA of engaging in “magical thinking.”
Then the EPA appealed, and now the Washington, D.C. Court of Appeals has accepted that magical thinking and sided with the EPA.
The opinion, written by Judge Karen LeCraft Henderson, weaves an argument reminiscent of M.C. Escher’s lithograph Relativity, with stair steps leading back to each other.
Henderson found that the EPA has a “backstop” authority, empowering it to withdraw the discharge specification whenever it determines the mine would have an “unacceptable adverse effect.” The EPA, according to the judge, can take that action “at any time” even after the permits have been issued.
So, let’s get this straight.
A company has to get permits from the Corps of Engineers to open a mine. The EPA–according to Judge Henderson at least–cannot step in until the Corps issues the permits. But then the EPA can effectively negate a permit any time after it has been issued.
This circular regulatory anomaly makes it virtually impossible for a coal company to have any operating certainty. What’s the use of going through the time and expense of getting the mine permits if the EPA can call a halt to operations when it finally determines the mine creates “an unacceptable adverse effect.”
But given the track record of the EPA under this Administration, that may have been the agency’s intent all along.