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Mingo Logan v. Environmental Protection Agency

ELR Citation: 46 ELR 20127
Nos. 14-5305, (D.C. Cir., 07/19/2016)

The D.C. Circuit upheld EPA's decision to invoke its veto authority under CWA §404(c) and withdraw two disposal sites from a CWA permit issued by the U.S. Army Corps of Engineers for a mountaintop coal mining project in West Virginia. The areas withdrawn make up roughly 88% of the total discharge area that had been authorized by the permit. In 2013, the mining company challenged EPA’s statutory authority to withdraw the two sites from the Corps permit after it had been issued, but the D.C. Circuit held that the CWA authorized EPA to do so. The court remanded the matter to the district court to consider the company's remaining APA claims, which the district court rejected. The company then appealed, arguing that EPA violated the APA because it failed to engage in reasoned decisionmaking by ignoring the company's reliance on the initial permit, impermissibly considering the effects of downstream water quality, and failing to explain adequately why the project’s environmental effects were so unacceptable as to justify withdrawal. The D.C. Circuit again upheld EPA's retroactive veto of the permit. EPA did not violate the APA in withdrawing specification of certain disposal areas from the permit; rather, it considered the relevant factors and adequately explained its decision. The court noted that EPA's ex post withdrawal is a product of its broad veto authority under the CWA, not a procedural defect. Accordingly, it affirmed the district court decision.