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Ruling destroys certainty in permitting

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A federal court has again reversed the direction of Arch Coal Inc.'s Spruce mine mountaintop removal permit in Logan County.

The Spruce mine is among the largest ever proposed in West Virginia, and controversy has swirled around the proposal for years. The site first drew attention when the Environmental Protection Agency revoked its permit after it had been approved by the U.S. Army Corps of Engineers. In 2012, U.S. District Judge Amy Berman Jackson overturned the EPA's ruling, stating that the agency had overstepped its authority. A ruling Tuesday written by Judge Karen LeCraft Henderson in the U.S. Court of Appeals overturned Jackson's ruling.

Is your head spinning yet? If not, let's recap – a permit was issued and then it was retracted. That retraction was ruled unconstitutional, and now that ruling has been reversed. 

When the EPA originally revoked the permit, it claimed the mine would cause too much environmental damage and tear apart the local ecosystem. The permit covers about 2,300 acres and would have buried an estimated seven miles of streams.

In her ruling, Jackson said the EPA's move was "stunning" and "there is absolutely no mention of it in the statute" of the power they evoked. In Tuesday's ruling, the court stated "Congress made plain its intent to grant the (EPA) administrator authority to prohibit/deny/restrict/withdraw a specification at any time." Which is it? 

This ruling clearly creates much uncertainty, but at the heart of the matter lies one central question – can we trust the permitting process? The answer is, sadly, no. Whether or not you subscribe to the idea that there is a "war on coal," there is no getting away from the fact that federal regulators must do their job and we must be able to have faith in the permanence of their decisions.

Is this same thing going to happen every time a new mine is proposed? Are we going to have a back and forth in the courts that is going to last the better part of two decades? Is the same "yes, no, yes, no" scenario going to play out every time? West Virginia coal is already disadvantaged by geography and market conditions. Can we expect that regulatory issues are going to further hamper the state's main industry? Uncomfortable though they may be, these are questions we have to answer.

Federal officials are toying with jobs and toying with investment. We are certainly not advocating any subversion of the regulatory process, but we say with conviction that we need a permitting process that actually works.