Attorney General Patrick Morrisey today announced that West Virginia led a bipartisan group of 27 states in an amicus, or friend of the court, brief urging the U.S. Supreme Court to review the Environmental Protection Agency's retroactive veto of a Clean Water Act permit issued to Mingo Logan Coal Co.'s Spruce surface mine.
"At its essence, this lawsuit is about jobs in West Virginia and elsewhere," Attorney General Morrisey said. "The EPA unlawfully vetoed permits issued by the Army Corps of Engineers nearly four years after they were granted, putting hundreds of jobs on the line. But this case is about more than coal mining. It's about the ability of states such as West Virginia to be able to engage and promote economic development, highway construction, and other needed investments without fearing a federal agency will step in years later and halt the project. That is why we strongly support Mingo Logan Coal Co.'s appeal to the U.S. Supreme Court."
West Virginia was joined on the brief by a bipartisan group of states including Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin, and Wyoming.
"Some of the states who joined are coal producing states, but most are not," Morrisey said. "We are unified in our message that the EPA was out of line in this instance. And, if it can happen in West Virginia, who is to say it won't happen again in another state?"
The states' brief argues the EPA exceeded its authority under subsection 404(c) of the Clean Water Act when it effectively vetoed a permit (known as a 404 permit) issued by the U.S. Army Corps of Engineers for the Spruce surface mine in Logan County. Mingo Logan sued the EPA, and in 2012, a federal district judge sided with the company. The EPA appealed to the U.S. Court of Appeals for the District of Columbia, which earlier this year threw out the lower court's ruling. Mingo Logan is now seeking to have its appeal heard by the U.S. Supreme Court.
The states say the EPA's decision to gut an already-issued permit has sweeping nationwide consequences for state and local governments. Of the 13 permits vetoed by the EPA since the Clean Water Act was implemented, more than half have been public works projects, such as flood prevention and water supply ventures. The brief argues that if the EPA's unlimited veto power is upheld, any public work project that has to receive a 404 permit would be subject to unending uncertainty. The states also argue the EPA could use its newly expanded authority to encroach upon other powers granted to the states in the Clean Water Act.
"If EPA's extreme position is upheld by the U.S. Supreme Court, no state project requiring a 404 permit is safe, regardless of its worthiness or how much it benefits the public," Morrisey said. "The EPA's 'anytime-veto authority' would have drastic consequences on state budgets because it would enable the EPA to stop a project - be it by a private company or a government agency - even after all of the conditions and terms of the permit were met and the project is substantially underway."
Morrisey said that power will have a chilling effect on both private and public investment now and in the future.
"The risk of a post-permit veto, even after millions of dollars have been spent by a government or private company to acquire the permits, may be too great to justify spending taxpayer or corporate dollars on a project that may ultimately be fruitless," he said. "The idea that an already-granted permit is no longer acceptable upsets the whole system that has been in place since the Clean Water Act was enacted. It places every economic development project or public works project that needs a 404 permit at the mercy of the political agenda of those at the helm of the EPA."
In addition to the states' brief, a broad range of private and public organizations have announced their support of Mingo Logan Coal Co. and its request to be heard by the U.S. Supreme Court. Those groups include, among others, state and local trade associations, such as the National League of Cities and the National Association of Counties; those engaged in home and road construction; as well as business and manufacturing groups, such as the National Association of Manufacturers, National Mining Association, American Coalition for Clean Coal Electricity, Pacific Legal Foundation, and the U.S. Chamber of Commerce.