OVEC's Win in Clean Water Act Case Has Nationwide and MTR Permit Implications
Sept. 2, 2003 As they got back to their offices after the long holiday weekend, environmental groups and regulators across the nation were looking at a Friday ruling by a West Virginia federal judge to see what implications the legal decision would have on their work.
The lawsuit focused on the antidegradation policy of the 1972 Clean Water Act.
"This is one of the first major antidegradation lawsuits that has been tried. The ruling is a big victory for us and for people nationwide. It sets a national precedent for stream protection," said Margaret Janes of the Appalachian Center for the Economy and the Environment. "We have already been contacted by groups all over the country, wanting more information on the case. Weve heard that regulators are poring over the ruling, too."
Environmentalists in many states have been looking at the antidegradation provision of the Clean Water Act as a way to protect waterways from unnecessary pollution and what they see as the Bush administrations pro-polluter, anti-clean water agenda.
"The Bush EPAs original approval of the plan was nothing less than an attempt to undermine a critically important Clean Water Act provision," said Vivian Stockman of the Ohio Valley Environmental Coalition (OVEC). "While we didnt win every point of the case, we did win the majority of our claims. This is an extremely positive decision, especially when considering the opposition we encountered in West Virginia. We can still look to the courts to protect West Virginians and their environment."
In January 2002, the lawsuit was filed against the U.S. Environmental Protection Agency by OVEC, West Virginia Rivers Coalition (WVRC) and 23 other organizations.
The groups contended that the EPA had approved an illegal antidegradation implementation plan for the states waterways. The federal judge hearing the case agreed on the majority of our points in the lawsuit.
U.S. District Judge Joseph R. Goodwin issued a more than 70-page ruling that sent the antidegradation policy back to the EPA to be rewritten.
In his ruling, Goodwin said, "West Virginias regulations simply fail to require the minimum protections required by the EPAs regulation."
"This ruling should help us counter the old arguments of big polluters. Anti-degradation is not about stopping all development. Its about openly evaluating public good versus private gain," said Jeremy Muller, executive director of WVRC. "A strong and legal anti-degradation policy is good for the economy and good for the future of West Virginia."
Under the Clean Water Act, states are supposed to submit to the EPA a plan for keeping clean waterways from becoming unnecessarily polluted and polluted waters from becoming further degraded. The plan must outline how a discharger gets the states permission to pollute high quality waters.
To give that permission, the state must conduct a thorough and open public review of a project to assure that the social and economic benefits of allowing water pollution outweigh the social and economic costs of that pollution.
After decades of delay, West Virginias plan was approved by the state legislature in early 2001, and the EPA signed off on the plan in Nov. 2001. Environmental groups said the Wise administrations plan was essentially written by the industry. They noted closed-door meetings between industry lobbyists and legislators where loopholes were added to a policy already watered down by a stakeholder review process.
"Big polluters, legislators and the West Virginia Department of Environmental Protection colluded on this plan. They led the state in the wrong direction. They didnt even bother to come up with a policy that complies with federal law. Their plan offered no balance between the public good and private gain. They forced us to sue it was our only recourse," Muller said.
Attorneys for the groups, Joe Lovett of the Appalachian Center for the Economy and the Environment in Lewisburg, WV, and Jim Hecker of Trial Lawyers for Public Justice in Washington, D.C., sued, contending that EPA should never have approved the states policy.
The West Virginia policy was full of exemptions and weak provisions. The judge said there can be no exemptions from antidegradation for new or expanded facilities.
The judge also said there was no basis for certain permits associated with valley fills at mountaintop removal sites to be exempted from antidegradation review. This is an important victory for coalfield residents who are fighting mountaintop removal coal mining. Without undergoing that review, coal companies have been receiving "general" permits for valley fills from the U.S. Army Corps of Engineers.
One result is that over 700 miles of Appalachian streams have been buried under the rubble created when companies blow up mountaintops to get to coal seams.
"It is really pitiful that Gov. Wise bragged on this illegal anti-degradation policy as a showpiece for his administrations environmental protection work. What it is, really, is a showpiece for how beholden politicians are to campaign contributions from the coal industry and other big polluters. Its a showpiece for the need for statewide campaign finance reform," Stockman stated.
"It is interesting to note that the judge said that the cumulative impacts of pollution sources to waterways were not sufficiently restricted by the states policy. He said the EPAs approval of the policy was arbitrary and capricious, and they couldnt justify their approach to cumulative impacts," Muller added.
"We are waiting to see if the decision will be appealed or if EPA will fix the existing policy," Stockman said.