RDC has prepared an amicus (friend of the court) brief in support of a coal mining company operating in West Virginia – Mingo Logan Coal Company. Mingo Logan has petitioned the U.S. Supreme court to reconsider an April 2013 decision by the lower D.C. Circuit Court that threatens to wreak havoc on the economy of Alaska.

The court concluded that years after a Clean Water Act section 404 permit had been issued by the U.S. Army Corps of Engineers, the Environmental Protection Agency (EPA), using its 404(c) authority, can essentially deem the permit invalid, even after the permit terms and conditions have been complied with and millions of dollars have been invested.

RDC believes the lower district court got it right, characterizing the EPA’s assertion of authority to withdraw the specification of certain areas as disposal sites from the permit at any time, without limitation, “a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute,” and concluded that it was “unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality.” EPA appealed, and unfortunately the D.C. Circuit reversed.

So why would RDC care enough about a case in West Virginia some 4,000 miles away to enter the fray? Because the D.C. Circuit Court’s decision threatens to undermine the ability to maintain a civil society and economy in Alaska. While it may sound overly dramatic, consider that the U.S. Fish and Wildlife Service estimates 175 million acres, or 43 percent of Alaska’s land mass, is considered wetlands, or in regulatory speak, “waters of the United States.” Any development requiring dredging or filling of wetlands – be it a road, house, school, church, oil production pad, mine, harbor, boat ramp, or driveway – requires a Clean Water Act “section 404” permit. Unless overturned, this ruling means the EPA can essentially veto a permit years after it has been issued, even under full compliance.

With so many wetlands in Alaska, 404 permitting is part of the cost of doing business for municipalities, tribes, Alaska Native Corporations, private landowners, state agencies and developers of vital resource development projects that help fuel our economy. It can take years and millions of dollars in studies, designs, compensatory mitigation, and legal costs to obtain the legal right to dredge or fill wetlands.

Up until now, getting through this exhaustive process and securing a 404 permit meant removing the uncertainty involved in the federal regulation and enforcement authority that can run up to $37,500 a day in civil penalties for unauthorized discharges, and double to up to $75,000 per day if a person fails to adhere to an EPA compliance order.

Uncertainty deters investment. The U.S. Chamber of Commerce and others submitted a report to the Circuit Court by University of California Berkeley Professor David Sunding. Dr. Sunding concludes that the uncertainty created by a one percent chance a permit could be revoked after it was issued lowers the cost benefit of the project by 17.5 percent. A two percent chance of an EPA retroactive adverse decision results in a 30 percent decrease. Consider the many controversial resource development and infrastructure projects in Alaska and it becomes obvious that the mere existence of this broad EPA authority will deter investment to the detriment of Alaska’s economy and the well being of its citizens.

Moreover, consider what a compliance order might look like after the fill is already in place and your house, school or church is already built. You build your driveway and your house in accordance with permit conditions, this includes paying a fee, complying and contributing to a mitigation bank to offset the loss of wetlands, however slight. Years later the EPA withdraws the specified fill area and you now have a house you can’t sell, potential fines, significant legal fees, and the prospect of removing your home.

It may sound far fetched but the only real change between the time the EPA agreed to specified fill disposal areas in the Mingo Logan 404 permit, and its about face withdrawal of 88 percent of the permit’s specified disposal sites, appears to be a change in administration. Armed with such unchecked EPA authority, consider what a future administration with a disdain for urban development or North Slope oil production might do.

I don’t want to wait to find out what the current or future administrations might do with such unbridled retroactive authority. My hope is that RDC’s brief will compel the higher court to hear the case.

Eleven other concerned parties nationwide, including Alaska and a coalition of states, a multitude of trade associations and affected businesses, are also filing briefs in support of Mingo Logan. It’s an uphill battle considering the Justices hear about one percent of the cases put before them, but it’s too important to not speak up.

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