Court Ruling On EPA’s Veto Authority Weakens Regulatory Certainty

On April 23, the U.S. Court of Appeals for the D.C. Circuit overturned the United States District Court for the District of Columbia's ruling in the case of Mingo Logan Coal Company v. United States Environmental Protection Agency. The lower court had ruled that EPA's action of withdrawing the Corps specification of a disposal area that was set forth in Mingo Logan Coal Company's Section 404 wetlands permit was valid even though the withdrawal action occurred three years after the permit was issued. The appeals court remanded the decision to the lower court to determine whether the action was arbitrary and capricious. The result is that any controversial project, or any project that becomes controversial after it is permitted, is potentially subject to an EPA action withdrawing the project site from being able to receive fill material.