Attorney General Patrick Morrisey and attorneys general from 26 other states have filed an amicus brief urging the U.S. Supreme Court to review the Environmental Protection Agency's retroactive veto of a water permit issued to Mingo Logan Coal Co's Spruce surface mine, saying it could have a chilling effect on public works projects throughout the country.
The states contend EPA overstepped its authority when it vetoed permits issued nearly four years earlier by the U.S. Army Corps of Engineers.
"All twenty-seven States agree that Congress could not have intended to give EPA such sweeping powers and that, at the very least, a decision of this magnitude deserves this Court's close attention," they said in the brief.
EPA's intervention resulted in Mingo Logan filing suit, and in 2012 a federal judge ruled in the company's favor. The U.S. Court of Appeals for the District of Columbia, however, overturned that decision on appeal.
Mingo Logan is now asking the U.S. Supreme Court to hear its appeal.
"At its essence, this lawsuit is about jobs in West Virginia and elsewhere," Morrisey said in a release issued Dec. 17. "The EPA unlawfully vetoed permits issued by the Army Corps of Engineers nearly four years after they were granted, putting hundreds of jobs on the line.
"But this case is about more than coal mining. It's about the ability of states such as West Virginia to be able to engage and promote economic development, highway construction, and other needed investments without fearing a federal agency will step in years later and halt the project. That is why we strongly support Mingo Logan Coal Co.'s appeal to the U.S. Supreme Court."
The brief describes EPA's intervention as a "patent effort to circumvent West Virginia's primacy...to set and protect water quality standards within its borders. Though the agency's window under the Act to object to West Virginia's water quality determinations and (permits) has long closed, it is now trying to backdoor those objections ..."
The group also says EPA's retroactive intervention has "sweeping nationwide consequences for state and local governments." Of the 13 permits vetoed by the EPA since the Clean Water Act was implemented, more than half have been public works projects, such as flood prevention and water supply ventures. The brief argues that if the EPA's unlimited veto power is upheld, any public work project that has to receive a 404 permit would be subject to unending uncertainty. The states also argue the EPA could use its newly expanded authority to encroach upon other powers granted to the states in the Clean Water Act.
"If EPA's extreme position is upheld by the U.S. Supreme Court, no state project requiring a 404 permit is safe, regardless of its worthiness or how much it benefits the public," Morrisey said. "The EPA's ‘anytime-veto authority' would have drastic consequences on state budgets because it would enable the EPA to stop a project – be it by a private company or a government agency — even after all of the conditions and terms of the permit were met and the project is substantially underway."
Joining in the brief were: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin and Wyoming.
In addition to the states' brief, Morrisey said a broad range of private and public organizations have announced their support of Mingo Logan Coal Co. and its request to be heard by the U.S. Supreme Court.