The permit was for the controversial coal-mining practice of mountaintop removal. The EPA noted if it allowed the mine to proceed, "the project will disturb approximately 2,278 acres (about 3.5 square miles) and bury approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil. This is among the largest individual surface mines ever authorized in West Virginia."
The EPA had been threatening for nine months to veto the permit the U.S. Army Corps of Engineers had issued, and took the first step toward the veto in 2009. This was not something it did lightly. The agency had reviewed more than 50,000 public comments and held a major public hearing in West Virginia before taking this drastic step.
Nevertheless, West Virginia politicians professed shock and dismay. U.S. Sen. Joe Machin -- not the most environmentally friendly politico anyway -- called the ruling "fundamentally wrong" and "a shocking display of overreach" that will cost jobs. (It's already cost one: the EPA's top water regulator quit the next day.)
But Machin is wrong. The EPA has had the power to veto permits like this one since the Clean Water Act passed Congress in 1972. The problem is, it has seldom used that power -- in fact, this is only the 13th veto since a bipartisan vote in Congress approved the law 38 years ago.
As we noted in "Paving Paradise," the Corps of Engineers is inclined to say yes to every miner, developer, and highway agency that comes along -- even after federal judges repeatedly slap down their decisions.
The EPA has usually gone along with those decisions -- to the point where the EPA's own inspector general criticized the agency. However, two years ago a federal judge ruled that the EPA "is obligated to veto a permit if the project is likely to result in 'adverse effects' " to wetlands. In other words: Do your job and enforce the law.
As the EPA itself points out in its decision document, "EPA believes that companies can design their operations to make them more sustainable and compliant with the law. Last year, EPA worked closely with a mining company in West Virginia to eliminate nearly 50 percent of their water impacts and reduce contamination while at the same time increasing their coal production. These are the kinds of success stories that can be achieved through collaboration and willingness to reduce the impact on mining pollution on our waters."
If the government actually enforces the Clean Water Act, instead of bending over backwards to say yes to every permit, then we might start seeing businesses treating wetlands as the valuable commodities that the law has always said they were.