Mingo Logan Coal Co. challenged an EPA decision that it argued retroactively changed a Clean Water Act permit issued by the U.S. Army Corps of Engineers four years earlier. This change withdrew certain creeks as disposal sites for dredged material, affecting the validity of a permit that EPA had previously reviewed and assented to, and even though the permit holder was in full compliance with it.
In March, 2012, a federal judge ruled that EPA did not have the power to revoke a valid permit -- only the U.S. Army Corps of Engineers, which issued the permit, has the authority to revoke it. The NAM filed an amicus brief in support of that result in the trial court, and that history is summarized here.
EPA appealed to the D.C. Circuit, and the NAM and other business groups filed a second amicus brief raising concerns about the substantial uncertainty that would be generated were EPA to have the power it claimed. The power to revoke a valid permit by EPA will substantially raise the stakes for any project that requires a Section 404 permit. That will distort the cost-benefit ratio and discourage new investments in any such project. The uncertainty from this looming threat will lead to higher interest rates and fewer investments, affecting downstream benefits such as job creation, housing, commercial space, food, consumer products, libraries and schools.
Unfortunately, the D.C. Circuit reversed the trial court on April 23, 2013. A 3-judge panel ruled that EPA has the final say on discharge site selection under Sec. 404(c) of the Clean Water Act. It can withdraw a specification of a stream as a suitable site for discharging dredged or fill material from a mountain-top mine at any time, including after a permit is issued. The withdrawal amends the terms and conditions specified in the permit. The court sent the case back to the trial court to resolve a remaining challenge -- whether EPA's decision was arbitrary and capricious in violation of the Administrative Procedure Act.