On Friday, July 11, 2014, two U.S. Circuit Courts of Appeals issued important decisions regarding Clean Water Act permitting. Both appeals saw the losing side supported by numerous and diverse amici. These levels of participation in the appellate process indicate the far-reaching significance of the decisions beyond the cases' direct application to Appalachian coal mining.
First, National Mining Association v McCarthy (formerly Jackson) concerned the oversight of EPA and the Corps of Engineers over Clean Water Act permitting for Appalachian coal mining operations. The D.C. Circuit reversed the D.C. District Court and found that agencies' adoption of the Enhanced Coordination Procedure for reviewing the Clean Water Act permits for Appalachian mining operations did not violate the statutory authority granted by the Act. The court further found that the Final Guidance regarding more stringent limits to be applied to those permits was not a final agency action subject to review by the court.
Second, in Southern Appalachian Mountain Stewards v. A&G Coal, the Fourth Circuit affirmed the lower court's ruling and held the Clean Water Act's "permit shield" did not protect a surface coal mining permittee from citizens' suit for pollutants discharged from the operation. In reaching this decision the court found that the mining permittee had not complied with the obligation to disclose fully the pollutants discharged from the operation.
We will be analyzing these decisions and will provide expanded discussion here on this site.
Stay tuned.
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