A federal court in the District of Columbia has refused to dismiss a challenge to EPA guidance aimed at mountaintop removal and waste disposal in Appalachia. Nat’l Mining Ass’n v. Jackson, No. 10-1220 (D.D.C. 1/14/11). While the court also denied plaintiffs’ request for a preliminary injunction that would have halted EPA’s guidance from being implemented, it observed that plaintiff “is likely to prevail on its claim that EPA has exceeded its statutory authority.”
The guidance, which was issued in 2010, tightened restrictions on surface coal mining by attempting to add criteria to the U.S. Army Corps of Engineers (Corps) authority to issue dredge-and-fill permits under section 404 of the Clean Water Act. The court stated that EPA’s guidance was an attempt to modify the section 404 permitting scheme, an authority not granted to EPA in the CWA. That analysis, however, was insufficient for the court to grant plaintiff’s request for a preliminary injunction. The matter will be tried later this year. West Virginia and Kentucky have also sued EPA over the guidance.