Arch Denied by Top U.S. Court on West Virginia Permit

The U.S. Supreme Court refused to reinstate Arch Coal Inc.’s permit for a mountaintop mine in West Virginia, turning away an appeal that sought to rein in the Environmental Protection Agency.

The justices today left intact a lower court ruling that said the EPA can invalidate Clean Water Act permits issued years earlier. Arch’s Mingo Logan unit is seeking to restore a permit it received from the Army Corps of Engineers in 2007.

Corporate trade groups and states rallied behind the Arch appeal, accusing the EPA of asserting a sweeping new power.

The Clean Water Act “does not remotely grant EPA a retroactive trump card that trivializes the Corps’ authority and destroys the regulated community’s ability to rely on the permit,” Mingo Logan argued in court papers.

The rebuff is a victory for President Barack Obama’s administration in its effort to block a project it says would damage wildlife by filling in seven miles of waterways. The high court action doesn’t affect a separate line of argument being pressed by St. Louis-based Arch at a federal trial court in Washington.

The EPA originally approved the plan under President George W. Bush. The Obama administration says it shifted course because of new information, including data from work that had begun at the site.

A federal appeals court in Washington backed the EPA on a 3-0 vote, saying the Clean Water Act “does indeed clearly and unambiguously give EPA the power to act post-permit.”

Wide Support

Arch’s bid for a hearing drew a large level of support. Thirteen outside briefs backed the company, with filings from the U.S. Chamber of Commerce, the American Petroleum Institute and a West Virginia-led collection of 27 states.

The Clean Water Act gives the Corps the authority to issue permits to discharge dredged or fill material into waterways. Before a permit is issued, the EPA can block discharges in sensitive areas, and the question in the Arch case was whether the agency can also do so post-permit.

The administration says the EPA has consistently taken the view that it can withdraw its approval of a project after the permit has been issued, though the agency has done so only three times since 1979.

Arch’s plan at the Spruce No. 1 mine site involves dynamiting more than 2,200 acres of mountains and forest, according to the EPA. The company says the agency’s decision blocked $250 million of additional investment and 250 jobs.

The case is Mingo Logan Coal v. EPA, 13-599.

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