Mingo Logan v EPA

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The Environmental Protection Agency , founded in 1970, employs 17,000 people
Landscape destruction in mountain top removal mining; Aerial view
Lisa P. Jackson, now with Apple Inc. , was the EPA administrator appointed by Barack Obama and was responsible for initiating the objection proceedings against the dismantling license for Spruce 1 from 2009 to 2013
Gina McCarthy has succeeded Lisa Jackson as EPO administrator since 2013
Amy Berman Jackson (born July 22, 1954) ruled twice as District Judge at the United States District Court for the district of Columbia in the Mingo Logan v EPA proceedings

Mingo Logan v EPA was a high-profile legal battle in the United States between the mining company Mingo Logan Coal Company Inc. and the US Environmental Protection Agency over the revocation of a mining permit that had already been issued .

The outcome of the long-standing process is seen by the media as a preliminary decision on the future of the mountaintop removal mining method, which is rejected by environmentalists . Observers of the dispute between the US coal industry and environmental protection organizations see the decision as a result of the stricter interpretation of environmental protection laws introduced under the Obama administration as opposed to the handling customary in the administration of George W. Bush .

Spruce 1

Spruce 1 was a mining project in the Appalachian Mountains in Logan County , West Virginia . The mining area named after the Spruce Valley should be on the border with Boone County near the village of Blair. The area is accessed by the Blair Mountain Highway (17), which runs along the Spruce Forks River, which has already been contaminated by other mining activities . About eight kilometers west of Spruce 1 is Blair Mountain, which was the site of the Battle of Blair Mountain in 1921 . Logan County is one of West Virginia's open pit mining centers , and the county is the second largest coal producer in the state. Spruce 1 should of Mingo Logan Coal Co. , a subsidiary of Arch Coal, Inc. , to operate. According to the mining company, Spruce 1 would have contributed $ 250 million to regional economic output and created 250 open pit jobs. Another 300 jobs would have been created indirectly.

If the mining application was approved, Spruce 1 would have become the largest open pit mine in the Appalachian Mountains with a 2278 acre (9.2 square kilometers) mine field . The coal reserves were estimated at 55 million tons. The annual subsidy would have ensured the electricity needs of 64,500 households. The removal of the up to 400 feet (122 m) thick mountain peaks would have led to the partial filling (so-called valley fills ) of several valleys. Several catchment basins for toxic waste water should be created (in Seng Camp Branch , Pigeon Roost Branch and the Oldhouse Branch ). A large part of the Pigeon Roost Hollow leading through the planned mining area (with the associated road and river course) would have been filled with rock masses . According to the EPA, there should be a total of 110 million cubic yards (84 million cubic meters ) of spoil that would have spilled around 6.6 miles (10.6 kilometers) of river courses.

Procedure

In 2009, a mining license that had already been granted was revoked by the Environmental Protection Agency - a process that had been unique in coal mining in the USA until then. After the revocation was negotiated by all instances, it has been legally binding since a decision by the Supreme Court of the United States in 2014.

Request

In 1997, Hobet had mining. Inc. of Madison , an Arch Coal subsidiary , has applied for a 3,113 acre mining permit. Environmentalists have been fighting the project since it became known. In the subsequent negotiations with the responsible licensing authority, the United States Army Corps of Engineers (USACE), which had examined the application since 2005, the mining area was reduced to 2278 acres.

Approval procedure and issuing

After lengthy negotiations, the USACE granted approval no. S 5013-97 in 2007. The EPA was involved in these negotiations and, despite concerns expressed in 2006, had given its final approval. The approval also related to the Clean Water Act , a federal law of 1972; this part of the permit, known as Section 404 permit , provided for the backfilling of three watercourse-carrying valleys with overburden.

Revocation of approval by the EPA

After the approval was granted, the first preparatory work began in the future mining area. As a result of the change of president in the United States in 2009 and the associated replacement of the EPO management, the authority began to work on an objection procedure in October 2009 and initially ordered the cessation of work on the Spruce 1 in March 2010. The EPA had already informed the USACE in September 2009 that it was considering revoking or changing the approval.

A public hearing on the project was held by the EPA in May 2010. Like many others, the Democratic representative of West Virginia in the United States House of Representatives , Nick Rahall , pointed to the threat of job losses in the region. In October 2010, Shawn M. Garvin, EPA's regional director, recommended that the approval be revoked. His rationale referred to "unacceptable negative effects on wildlife and fishery stocks". Various species of fish, invertebrates , salamanders , birds and other animal species would be harmed.

On January 13, 2011, the EPA revoked the license on the basis of the Clean Water Act , which enables the agency to appeal against decisions by the USACE if mining activities polluted surface or groundwater.

The EPA criticized the expected water pollution from valley backfilling as too high. Therefore, the permit was limited to one of three valleys. One argument was the expected selenium input into the affected watercourses, which would salinize fresh water (“... turn fresh water into salty water”). The EPA deputy administrator responsible for water protection Peter S. Silva continued:

“The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend. Coal and coal mining are part of our nation's energy future and EPA has worked with companies to design mining operations that adequately protect our nation's waters. We have a responsibility under the law to protect water quality and safeguard the people who rely on clean water. "

“The proposed Spruce 1 mine [for approval] would employ destructive and unsustainable mining techniques that threaten the health of the Appalachian people and the cleanliness of the water on which they depend. Coal and its mining are part of our nation's future energy supply, and the EPA has [already] worked with companies to shape mining activities to protect our country's [our nation's] water. Laws oblige us to protect water quality and to represent the [interests of the] population who depend on it. "

Up until then - since 1972 - the EPA had only revoked a license twelve times; this was the first time in the case of mining applications. The response to the revocation of the permit was substantial; Environmental organizations hailed the EPA's move. The Sierra Club described the EPA's decision as a historic move in the treatment of these "mother of all mountaintop removal coal mines". John Devine of the Natural Resources Defense Council noted appreciatively:

"In the face of the political and industrial forces pressuring EPA to ignore the damage this mine would cause, it took guts for the agency to follow the science and the law."

"In view of the pressure from politics and industry on the EPA to ignore the destruction caused by this open pit, the agency needed the steadfastness of the agency to follow science [knowledge] and the law."

Admission to the procedure

On the following day, January 14, 2011, the representatives of Arch Coal filed a petition with the federal district court of Columbia District for a first-instance lawsuit against the EPA's revocation. They also called for a suspension decision for EPA measures in the implementation of the revocation. On the same day, federal judge Reggie Walton upheld the right of action, but there was no suspension of EPA actions. In the grounds for admitting the action, Walton stated that the EPA may have exceeded its powers if the authorization was withdrawn.

Procedure 1st instance

On March 23, 2012, Federal Judge Amy Berman Jackson declared the EPA's revocation invalid; the EPA does not have the right to revoke a license based on the Clean Water Act . With the revocation, the authority exceeded its powers. The EPA have usurped the rights it is not entitled to ("... an illegal power grab"). Jackson declared the approval granted by the USACE also with regard to water pollution to be legally binding ("... valid and in full force"). In their statement Jackson accused the EPA, based on magical thinking to revoke ( "... relying on magical thinking") core aspects of the license, which they would have voted for four years before.

The governor of West Virginia, Earl Ray Tomblin , said after the court ruling on March 23, 2012:

“This is a huge victory for West Virginia and our coal miners. I want to thank Judge Jackson for recognizing that the EPA and the federal government were completely wrong in revoking this permit. I now call upon Lisa Jackson and the EPA to admit that they have gone too far - enough is enough. Issue our permits so that we can put our people back to work and provide the resources that will power America. "

“A great victory for West Virginia and our miners. I want to thank Judge Jackson for determining that the EPA, like the state government, made a huge mistake in withdrawing the license. I now urge Lisa Jackson and the EPA to admit that they have gone too far - enough is enough. Issues our permits so we can send our people back to work and provide the resources that power America. "

Procedure 2nd instance

After the verdict, the EPA said it was considering reviewing the decision. In May 2012 the authority informed that an appeal had been submitted to the competent federal appeals court .

The hearings took place in March 2013. Both parties agreed to an expedited procedure. Interested parties from various branches of industry expressed their fear to the court of appeal that the permission of an authority to object after prior approval would have a “chilling effect” on the economy.

On April 23, 2013, the United States Court of Appeals for the District of Columbia Circuit ruled that the revocation issued by the EPA was in principle lawful. The court thus revoked the first instance decision and referred the case back to the Federal District Court for re-examination. The three judges of the appellate court (Henderson, Griffith and Kavanaugh) decided unanimously that the EPA was entitled to a possibility of regulation even after approval was granted.

Appeals judge Karen Henderson stated that the Clean Water Act basically gives the EPA the right to follow up (“… does indeed clearly and unambiguously give EPA the power to act”). The court did not deal with the question of whether the revocation was disproportionate ("arbitrary and capricious"). The Federal District Court has to evaluate this issue.

Decision on the appeal process

On November 13, 2013, Mingo Lohan filed an application for confirmation of admission to appeal ( Certiorari ) with the United States Supreme Court (Mingo Logan v. EPA, US Supreme Court, 13-599) . In December 2013, Amicus Curiae briefs from several dozen organizations followed in favor of the plaintiff. The EPO sent its opinion on February 14, 2014, and Mingo Lohan replied on March 4, 2014.

The US Supreme Court ruled on March 24, 2014 to dismiss the appeal.

Revised decision of the Federal District Court

On September 30, 2014, Federal Judge Jackson reversed her March 23, 2012 ruling, declaring the EPA license revocation legal. She justified the decision in favor of the EPA with the appropriateness of the revocation, which is supported by scientific opinions and falls within the EPA's decision-making authority with regard to water protection. The reasoning of Mingo Logan was not appropriate to draw a contrary conclusion ( "Mingo Logan's arguments do not warrant a contrary conclusion").

Submission of a bill to restrict EPA rights

West Virginia's Republican representatives to the United States House of Representatives , David McKinley , Evan Jenkins, and Alex Mooney , tabled a bill in the House of Representatives on March 5, 2015 to prevent the EPA from revoking permits. When presenting the draft, McKinley pointed to the hope of preventing a future situation like the one in the Spruce 1 project. Jenkins, whose constituency should be Spruce 1, stated:

“Make no mistake - the Obama administration and his EPA have declared a war on West Virginia coal and West Virginia coal jobs, and Logan County's Spruce No. 1 mine is just one target. "

"So that nobody gets it wrong, the Obama administration and its EPA have declared war on the coal industry and the jobs in the West Virginia coal industry, and Spruce 1 is just one of many targets."

meaning

The process of revoking the approval was given far-reaching importance by those involved and third parties. Industry representatives saw principles of the rule of law under threat, according to which legal certainty plays an essential role in the approval process for large-scale investments. In addition, the revocation means that the administration under President Obama does not support the coal industry despite statements to the contrary. Senator Jay Rockefeller saw the decision as evidence of the government's dishonesty ("... a proof that the Obama administration is beeing less than honest about its support for coal"). Conservative politicians accused Obama of waging a war against domestic coal production ("Conservatives have accused Obama of waging a" war on coal "...").

Environmental protection officials interpreted the first-time revocation of a mining permit that had already been granted as an implementation of Obama's election promises. Robert F. Kennedy Jr. referred to the local people's prayers for promises to be fulfilled. The new EPA leadership, appointed by Obama, is vigorously trying not to define environmental protection requirements according to the needs of the industry lobby. ("... is to once again base environmental regulations on science and the law, not on the demands of well-connected industries"). Unlike under the previous government, it is ready again to intervene in controversial projects ("... but under Obama the agency has been much more willing to intervene on projects"). The media saw the decision as a victory for the Obama administration over previously practiced clientele politics.

In some cases, the decision against the Spruce 1 mining area was interpreted as a harbinger of a ban on the controversial mountaintop removal process ("If the administration sticks to its guns, mountaintop removal is going to be severely curtailed", "Obama administration cracks down on mountaintop mining." "), Which had boomed under the Bush administration's industry-friendly approvals in the Appalachians.

Individual references / comments

  1. ↑ Hayley Tsukayama, Apple's Lisa Jackson to lead all of Apple's social policy initiatives , June 23, 2015, The Washington Post
  2. ↑ a b The high price for cheap coal: Two-part population , May 14, 2015, ORF.at
  3. ↑ a b Timothy Cama, Court upholds EPA veto in mountaintop removal mining case , October 1, 2014, The Hill (newspaper), News Communications (English)
  4. ↑ a b c d e f Erik Eckholm: Project's Fate May Predict the Future of Mining. In: The New York Times. nytimes.com, July 14, 2010, accessed September 24, 2015 .
  5. ↑ a b Spruce No. 1 mine ( Memento from April 1, 2012 in the Internet Archive ) , September 1, 2011, Environmental Protection Agency (English)
  6. ↑ Blair Mountain was placed under the protection of the National Register of Historic Places in 2009 because of the historical significance of the battle . Just one year later, this status was revoked because of protests from residents supported by the coal industry, according to Heather Pringle, Coal Firms to Strip-Mine Historic Battlefield? , June 4, 2010, National Geographic (English) and acc. Robert Howell and Allison Moroses, The new battle for Blair Mountain , Aug 13, 2011, CNN
  7. ↑ Dave Mistich, Central Appalachia, Southern West Virginia 'Ground Zero' for Recent Coal Mine Layoffs , see table: Top 25 Counties for Coal Mine Job Losses , June 17, 2015, West Virginia Public Broadcasting (English)
  8. ↑ The Arch Coal, Inc. is a on the NYSE (symbol ACI) listed coal producer based in St. Louis . It is one of the largest coal mining companies in the world and the second largest of its kind in the United States. In 2014, it sold 134 million tons of coal. The company's share in US coal production is 13%.
  9. ↑ a b c d e Michael Martinez, EPA revokes permit for hilltop mining project in West Virginia , January 15, 2011, CNN (English)
  10. ^ A b c Christopher Horner: Power Grab: How Obama's Green Policies Will Steal Your Freedom and Bankrupt America . Regnery Publishing, 2010, ISBN 978-1-59698-599-5 , pp. 285 ff . (English, Google books [accessed September 24, 2015]).
  11. ↑ Michael Shnayerson: Coal river . Macmillan Publishers, 2008, ISBN 978-1-4299-3316-2 , pp. 258 (English, Google books [accessed September 24, 2015]).
  12. ↑ Peter Iadicola, Anson Shupe: Violence, Inequality, and Human Freedom . Rowman & Littlefield, 2012, ISBN 978-1-4422-0950-3 , pp. 302 (English, Google books [accessed September 24, 2015]).
  13. ↑ a b Walter A. Rosenbaum, American Energy: The Politics of 21st Century Policy , ISBN 978-1-4833-2102-8 , CQ Press , 2014 (English)
  14. ↑ a b c Erica Martinson, Court: EPA can withdraw permits , April 24, 2013, Politico (English)
  15. ↑ a b Bryan Walsh, Mining: The EPA Vetoes a Mountaintop Removal Mine- and Industry Opponents Fire Back , January 13, 2011, Time (English)
  16. ↑ a b c Neela Banerjee, Federal court backs EPA regulation of mountaintop removal , April 23, 2013, Los Angeles Times (English)
  17. ↑ a b Suzanne Goldenberg, US environmental agency revokes mine's permit for mountaintop removal , January 13, 2011, The Guardian (English)
  18. ↑ According to reports from CounterPunch , the mine has been working since 2010: Mike Rosell, Mammoth Spruce No 1 Mine Goes Forward Despite EPA Veto , February 3, 2011, CounterPunch
  19. ↑ Gabriel Nelson, Judge Allows Mountaintop-Removal Lawsuit to Proceed , January 18, 2011, New York Times (English)
  20. ^ Civil Action No. 10-1220, National Mining Association (plaintiff) v Lisa Jackson, US Environmental Protection Agency, et.al (defendant)
  21. ↑ a b John M. Broder, Court Backs EPA Veto of Mining Permit , April 23, 2013, New York Times (English)
  22. ↑ a b Ken Ward Jr .: Breaking: Judge overturns EPA veto of Spruce Mine , March 23, 2012, The Charleston Gazette (English)
  23. ↑ a b c Manuel Quinones, Coal: Appeals court backs EPA in battle over retroactive veto of Clean Water Act permit , April 23, 2013, E&E Publishing, LLC. (English)
  24. ^ John M. Broder, EPA Appeals Coal Mine Ruling. In: The New York Times May 14, 2012, (English)
  25. ^ Mingo Logan Coal Company v. Environmental Protection Agency: Petition for certiorari denied on March 24, 2014 , Supreme Court of the United States (SCOTUS) Blog (English)
  26. ↑ Rebekah Kearn, EPA Properly Changed Stance on Dump Sites , October 3, 2014, Courthouse News Services (English)
  27. ↑ Jessica M. Karmasek, W.Va. House members introduce EPA bill , March 3, 2015, West Virginia Record
  28. ↑ Charles Owens: W.Va. Representative co-sponsors legislation to fight EPA permit vetos. In: Bluefield Daily Telegraph. bdtonline.com, March 4, 2015, accessed September 26, 2015 .
  29. ↑ Lawrence Hurley, Supreme Court declines to hear Arch Coal mining permit case , March 23, 2014, Reuters (English)
  30. ↑ Doug McKelway, Obama Coal Crackdown Sends Message to Industry , January 17, 2011 Fox News (English)
  31. ↑ Stopping Mountaintop Removal Coal Mining , The Washington Post (English)
  32. ↑ Herbert N. Foerstel, Toxic Mix ?: A Handbook of Science and Politics , ISBN 978-0-313-36234-7 , ABC-CLIO , 2010, p. 207 (English)
  33. ↑ Tim Dickinson, The Eco-Warrior: Lisa Jackson's EPA , January 20, 2010, Rolling Stone (English)
  34. ↑ Brent Kendall, Supreme Court Rejects Challenge To Arch Coal EPA Powers On Permits: High Court Said It Would not Review A 2013 Appeals Court Decision , March 24, 2014 The Wall Street Journal (english)
  35. ↑ Juliet Eilperin, Obama administration cracks down on mountaintop mining , January 13, 2011, The Washington Post (English)
  36. ↑ Trip van Noppen, EPA Court Victories Pile Up: It's Time To End Mountaintop Removal , July 22, 2014, The Huffington Post (English)
  37. ↑ Alexis C. Madrigal, Coal Project Is Bellweather for Obama Mining Policy: The Obama administration is signaling it might get tough on mountaintop-removal coal mining , July 15, 2010, The Atlantic (English)
  38. ↑ Dylan Lovan, Steep coal decline seen for mountains ( Memento of the original from September 25, 2015 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.themountaineagle.com archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , September 28, 2011, The Mountain Eagle (English)

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