D.C. Circuit blesses EPA's retroactive vetoes of valid Clean Water Act permits, injecting substantial uncertainty into permitting process
The U.S. Chamber and a coalition of trade associations urged the U.S. Court of Appeals for the D.C. Circuit to hold that EPA exceeded its authority under Section 404(c) of the Clean Water Act when, for the first time in the history of the Act, the EPA unilaterally revoked a validly issued 404(c) fill permit issued by the U.S. Army Corps of Engineers. Although the EPA originally consented to the permit as part of a lengthy review process, the Agency decided to veto the permit after the mining company failed to concede to the EPA’s demand that the company pursue a “sequential fill” approach to all of the sites designated in the permit. The U.S. Chamber's amicus brief argued that billions of dollars in economic activity could be adversely affected if EPA's unprecedented grab for veto authority goes unchecked.
Previously, the U.S. Chamber participated in a coalition amicus brief before the U.S. District Court for the District of Columbia
The U.S. Court of Appeals for the D.C. Circuit reversed and remanded the decision of the District Court holding that EPA has authority under CWA section 404(c) to withdraw a disposal site specification post-permit. Previously, the D.C. District Court ruled 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 after a permit had been issued by the Corps under section 404(a). The district court described the EPA's conduct as "unprecedented" and "magical thinking." According to the district court, there is absolutely "no question" that the Clean Water Act does not expressly give the EPA the authority it claimed it had to unilaterally veto an existing permit. The district court said that the EPA's legal theory would unreasonably "sow a lack of certainty into a system that was expressly intended to provide finality."
Coalition amicus brief filed with D.C. federal district court 6/3/11. Government motion in opposition to amicus brief filed 6/21/11. Amici's response to government opposition filed 6/27/11. Motion to file amicus brief granted 8/1/11. Government motion to strike economic data from amicus brief filed 9/23/11. Decided by district court 3/23/12. Coalition amicus brief filed with D.C. Circuit 9/19/12. Decided by D.C. Circuit 4/23/13.