Empowered by a recent court ruling, the Environmental Protection Agency is coopting arcane laws to inhibit economic development and kill thousands of jobs. In order for a mining operating to begin production, developers must apply for and receive a handful of permits. One such mandatory permit is the Section 404 permit required under the Clean Water Act. Production cannot begin without the Section 404 permit, effectively giving the EPA veto authority over any proposed mining project.
A few weeks ago, a federal appeals court upheld the EPA’s decision to retroactively revoke a 2007 Section 404 mining permit issued for the Spruce Mine in West Virginia.
Granting the EPA sweeping authority, Judge Karen LeCraft Henderson wrote that the Clean Water Act “empowers him [EPA Administrator] to prohibit, restrict or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result."
Judge Henderson’s ruling may have granted the now blatantly partisan EPA the ability to kill any mining project “whenever” it sees fit. Given the EPA’s job killing regulations and attempts to scuttle the Keystone XL pipeline, it is easy to predict how the EPA will use its newly codified authority.
It is not surprising that President Obama’s EPA is pushing legal barriers to shut down a coal mine in West Virginia. What is surprising is that a federal judge endorsed such a move, especially after a district court argued that the EPA "exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites."
Most mining projects require years of preparation. Before developers can even begin mining, they first must identify economically viable resources, either buy or lease land from the government or private individuals, and then apply for drilling permits from a handful of different agencies. Arch Coal received its first Spruce Mine permit in 1998 and received its Clean Water Act permit in 2007. All in all, this process requires millions of dollars, lawyers, and years of paperwork.
After the Spruce Mine ruling, job creators will have to go through this expensive, time-consuming process knowing that the EPA can pull the rug out from under them at any point during production.
Every mining investment just got a whole lot riskier.
But this is nothing new. With Congressional Republicans blocking Democrats’ anti-growth legislation, environmentalists have enlisted the EPA to inhibit domestic energy and mineral production.