Mingo Logan Coal Co. v. Environmental Protection Agency (EPA)

Case Updates

The U.S. Chamber and the American Farm Bureau Federation filed an amicus brief in support of U.S. Supreme Court review of a D.C. Circuit decision that upheld an unprecedented EPA veto of a validly-issued Clean Water Act permit issued to a mining company under Section 404 of the Act. As explained in the amicus brief, this case presents a question of vital importance to the Chamber and the Farm Bureau (collectively “amici”) and their members: whether, under Section 404(c) of the Clean Water Act, the Environmental Protection Agency (“EPA”) has the uncabined authority to withdraw disposal site specifications years after the Army Corps of Engineers (“Corps”) has issued a permit, thereby effectively nullifying a permit properly issued by the Corps.

The answer to this question has tremendous consequences for companies engaged in residential and commercial construction, farming and ranching, power generation and transmission, manufacturing, among many others. To put the question’s importance in perspective, the Corps issues approximately 60,000 Section 404 permits a year. As the Court noted in its 2006 decision Rapanos v. U.S., “[t]he average applicant for an individual [Section 404] permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.” Many businesses currently possess CWA permits, and they are directly affected by the uncertainty caused by the EPA’s actions in this case, and by the EPA’s broader assertion that Section 404(c) grants it plenary authority to modify a previously issued Section 404 permit.

Moreover, as reported in a brief the Chamber submitted in the courts below, “over $220 billion of investment annually is conditioned on the issuance of these discharge permits,” and every $1 spent on these projects generates roughly $3 of downstream economic activity. If, as the D.C. Circuit held, the EPA were to have unrestrained power to invalidate an existing, Corps-issued permit by claiming to “withdraw” the site specifications years after the permit had issued, the potential economic consequences of such uncertainty would be staggering.

Professor Christopher J. Walker of the Ohio State University Mortiz College of Law represented the U.S. Chamber as co-counsel to the National Chamber Litigation Center, Inc.