“GREAT NEWS! Last week, one of Appalachia’s largest and most destructive mountaintop removal mines ever proposed hit a huge stumbling block....” That was the leading comment in a social media broadcast a few days ago by Earthjustice, a major public interest law firm that protects natural resources and promotes environmental justice.
In a future post, I will discuss the legal case that was Earthjustice’s first big victory back in the early 1970s, when it was known as the Sierra Club Legal Defense Fund. That case involved the Mineral King Valley in California’s Sierra Nevada Mountains. I have long thought that the legal principles discussed in Mineral King, especially in a eloquent dissent by Justice William O. Douglas that has had more lasting impact than the majority opinion, are in close alignment with the moral argument that I introduced in a recent blog. My premise is that the land ethic supports the moral right of all concerned citizens, of the world and certainly of the United States, to be heard – to have “standing” in legal terms – on important conservation issues in Alaska and elsewhere. But that’s for another day.
This time, Earthjustice was celebrating the Supreme Court’s decision not to hear an appeal from a federal Circuit Court in a case about Spruce No. 1 mine in West Virginia, which is one of the largest "mountaintop removal" mines in the country. Lawyers call the case Mingo Logan, which refers to one of the coal companies involved in litigation with the U.S. Environmental Protection Agency. The Army Corps of Engineers had granted a permit allowing the mine to discharge fill into several streams, but the EPA vetoed the permit because it found that debris from the mine would destroy miles of unspoiled streams, endanger wildlife and harm neighboring communities.
A key issue in the case was the timing of the EPA’s action, which was taken under authority of Section 404(c) of the Clean Water Act. This provision acts as a trump card on the Army Corps’ permitting process. The EPA rarely plays this card, but when it has done so previously it always took the action before the Army Corps permit was issued. In the Mingo Logan case, the EPA invoked 404(c) four years after the permit was granted.
The federal appeals court had ruled broadly for the EPA, saying that 404(c) “imposes no temporal limit” on the agency, which can exercise its veto "whenever" it determines an adverse effect may result from a discharge. When the coal mining interests petitioned the U.S. Supreme Court for review, it chose not to take the case. That in itself is not surprising: the Supreme Court declines to hear the vast majority of cases that it is asked to consider. In doing so, it left the appeals court opinion, with its broad interpretation of EPA authority, in place.
Why is this important to Alaska? Because 404(c) is the statutory basis for the EPA’s recent action initiating a review of potential discharges associated with proposed mining at the Pebble deposit in the headwaters of Bristol Bay. A statement by the Pebble mine developer described the EPA’s action as “an unprecedented ... overreach onto an asset of the State of Alaska.” This controversy may well be headed for the courts. If it is, the Mingo Logan opinion left intact by the Supreme Court will be a very important legal precedent on the side of the EPA’s 404(c) authority in Bristol Bay. So Appalachia comes to Alaska!
On the subject of the Supreme Court not accepting all petitions for review, it is notable that the Court this week declined to hear an appeal in the Katie John litigation. This decision ends decades of litigation over a subsistence priority for rural Alaskans created by federal regulations under ANILCA. The Supreme Court’s inaction left in place a court of appeals ruling upholding the scope of the regulations. Sadly, the Athabascan elder who gave her name to the case did not live to see this conclusion. The Alaska Federation of Natives heralded the outcome and said it would continue to advocate for a rural subsistence priority throughout Alaska and not just on federal lands and waters.
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You may have noticed that some posts are ethical/philosophical, some are memoir/narrative, and now this one is legal/analytical. I expect to hop back and forth among these and other genres over time. I would be really interested in COMMENT feedback on what works best for you, recognizing that some readers are in Alaska and some are not, which may affect their preferences.