By Lee Hedgepeth
Alabama Political Reporter
Talk of coal has dug deep in Alabama in recent weeks. Most recently, Senator Richard Shelby (R) called for investigations into allegations that Alabama nonprofits who receive taxpayer funds have lobbied state government officials to vote against coal interests. Other Alabama GOP leaders in the state express similar concerns, and more broad concerns about the Obama administration and their allies’ overarching “war on coal.”
With all this in play, Governor Robert Bentley announced this week that Alabama will file an amicus brief asking the Supreme Court to hear the appeal of a coal company challenge to the Environmental Protection Agency’s permit power under the Clean Water Act’s Section 404.
The Mingo Logan Coal Company of West Virginia was issued a permit by the EPA to discharge pollutants into three river tributaries an area in the state in during the Bush Presidency in relation to a local public works project.
Four years later, with a much more progressive Obama administration in power, the EPA reevaluated the risk situation and withdrew the license, or “specification.”
The company filed suit, claiming both that the EPA has no authority to withdraw permits, and that the permit withdrawal was capricious and arbitrary. A district court ruled that, indeed, the EPA did not power to revoke permits after issuance, and thus found no need to reach the second issue.
The United States government quickly filed appeal, and the case was heard before the Circuit Court of Appeals for the District of Columbia, considered the second highest Court in the nation.
The DC Circuit reversed the ruling of the lower court. It found that the statute did allow for the withdrawal of a license, dictated by plain reading of the law, which is as follows:
“404(c) Denial or restriction of use of defined areas as disposal sites: The [EPA] Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines … an adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”
The DC Circuit Court then remanded the case for trial on the issue of arbitrariness and capricousness. Mingo Logan, however, is filing for certiorari to have its case heard before the Supreme Court, and Robert Bentley says Alabama will have its back. 26 other states, including Florida and Georgia, have also filed an amicus brief, claiming that such a broad EPA permit power would stunt public works nationwide.
“The authority asserted by the EPA in the Mingo Logan case is unprecedented,” Governor Robert Bentley said. “Alabama has joined West Virginia in support of challenging the D.C. Circuit Court’s opinion that gave overreaching power to the EPA. If the decision by the D.C. Circuit Court stands and the EPA has unlimited veto authority, all states will be subject to devastating uncertainty with respect to public works projects that require 404 permits under the Clean Water Act.”
