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The Week Ahead

EPA Seeks To Reinstate Mountaintop Mining Guide, Congress Reviews EPA's FY14 Budget

Posted: April 15, 2013

EPA is slated to file appellate briefs in a case that could determine whether the agency can reinstate its policy for permitting discharges and disposals from coal mining projects in Appalachia. House appropriators are slated to get their first public reaction to EPA's recent budget request.

In Court

A federal appellate court is slated to begin receiving briefs in a case that will determine whether EPA is able to reinstate its controversial policy for permitting discharges from mountaintop coal mining developments in Appalachia.

EPA is slated April 15 to submit to the U.S. Court of Appeals for the District of Columbia Circuit its brief making the case to overturn a lower court ruling that vacated its controversial Clean Water Act (CWA) guidance for permitting mountaintop mining operations.

In National Mining Association, et al v. Lisa Jackson, EPA is appealing a district court ruling that vacated the agency's informal policy guidance, “Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act (CWA), National Environmental Policy Act, and the Environmental Justice Executive Order,” which recommended strict pollutant limits in discharge and dredge-and-fill permits issued under the CWA.

In a July 31 opinion, District Court Judge Reggie Walton sided with industry's argument that the guidance exceeds EPA's authority under the CWA and infringes on state rights under the Surface Mining Control & Reclamation Act.

In particular, Walton noted that EPA's novel conductivity limit, a 300 microsiemens per centimeter (uS/cm) salinity measure as the level at which operators would be required to adopt best management practices to protect aquatic life and a 500 uS/cm-limit as a threshold at which EPA can deny permits, amounted to an unlawful water quality standard.

EPA sent its notice of appeal Oct. 9. Environmental groups, which are intervening in the suit on behalf of EPA, must file their briefs by May 6, and industry briefs are due June 24.

The Supreme Court will hear oral arguments April 16 in a lawsuit filed by the American Trucking Associations (ATA) alleging that Los Angeles' clean ports program violates federal transportation law -- a case that tests an approach that could set a precedent for how transportation hubs curb emissions.

A federal appeals court upheld the municipal program and rejected the industry challenge, but ATA in recent filings with the high court is urging justices to reverse the ruling. The group claims that the program -- which bars older, dirtier trucks from entering the city's port and enjoys strong support from environmentalists -- violates federal interstate transportation law.

The City of Los Angeles and the Natural Resources Defense Council in recent filings with the court defended the legality of the plan, rejecting the industry claims that it violates federal law. Some airport operators, such as the Airports Council International -- North America, are also backing the program, saying it could set a precedent on whether they can preserve their right to manage vehicular traffic and acquire property for environmental mitigation.

The United States has filed an amicus brief that says the “appropriate course” is to remand the U.S. Court of Appeals for the 9th Circuit's ruling to the appellate court so it can further assess various unresolved questions stemming from its decision. The Solicitor General has also won the right to participate in the oral arguments.

In Congress

States and other groups are expected to urge House appropriators at an April 16 hearing to increase funding for EPA's fiscal year 2014 budget.

The House Appropriations Committee's panel on interior, environment and related agencies is set to hold its first hearing on EPA and other agencies' budgets since the White House unveiled a request that proposed the lowest level of staffing at the agency since 1991 and cut the clean water and drinking water state revolving funds (SRFs) by a combined $472 million from FY12 levels.

States – which rely on the SRFs to fund infrastructure improvements – are expected to argue against the cuts, as they did after Obama sought similar reductions in 2012. Groups registered to testify include the Environmental Council of the States, Water Environment Federation, United Water and the Nature Conservancy.

In other congressional news, the House Energy & Commerce Committee's energy and power subcommittee is scheduled April 16 to mark up H.R. 3, a bill that would grant automatic approval to the Keystone XL pipeline. The bill is controversial because of concerns that approval of the project will lead to a significant increase in greenhouse gas emissions from the high-carbon tar sands oil the pipeline will transport.

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