BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM [1] ARTICLES SURIA M. BAHADUE* Justice Ginsburg Is Right: The EPA’s Veto Authority Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters Introduction .................................................................................. 2  I. The Permitting Process of the CWA ................................. 6  A. Sections 301, 306, 402, and 404 of the CWA ............ 6  B. The Definition of Fill Material ................................... 9  II. The Permitting Process in the Supreme Court: Coeur Alaska .............................................................................. 11  A. Factual Background ................................................. 11  B. Procedural Background ............................................ 12  C. The Supreme Court’s Decision ................................ 14  1. The Opinion of the Court ................................... 16  2. Justice Breyer’s Concurrence and Justice Ginsburg’s Dissent ............................................. 17  III. The Veto in the D.C. Circuit: Mingo Logan II ................ 17  A. Factual Background ................................................. 18  B. Procedural Background ............................................ 19  C. The D.C. Circuit Opinion ......................................... 20  IV. The Significance and Limitations of Mingo Logan II for Coeur Alaska ................................................................... 22  A. The Significance of Mingo Logan II ........................ 22  B. The Limitations of Mingo Logan II .......................... 24  1. EPA’s Use of its Veto and the CWA’s Citizen Suit Provision ..................................................... 24  * J.D. Candidate, Harvard Law School, 2016. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 2. Coal’s Economic Influence on the Legislative, Executive, and Judiciary Branches ..................... 26  3. Changes in Administrations ............................... 30  4. Current Legislative Challenges to the EPA’s Veto Authority ............................................................ 32  Conclusion .................................................................................. 33  Coal has always cursed the land in which it lies. When men begin to wrest it from the earth it leaves a legacy of foul streams, hideous slag heaps and polluted air. It peoples this transformed land with blind and crippled men and with widows and orphans. It is an extractive industry, which takes all and restores nothing. It mars but never beautifies. It corrupts but never purifies. - Harry Caudill1 INTRODUCTION On January 13, 2011, the U.S. Environmental Protection Agency (“EPA”) made history.2 The EPA issued its thirteenth veto in nearly half a century to shut down portions of the largest mountaintop removal mining project ever authorized in West Virginia, the Spruce No. 1 Mine.3 This thirteenth veto was different from its twelve predecessors: it came two and a half years after the U.S. Army Corps of Engineers (“Corps”) issued the Mingo Logan Coal Company a section 404 permit to discharge fill from the Spruce No. 1 Mine.4 Mingo Logan immediately brought suit against the EPA, arguing that section 404(c) of the Clean Water Act (“CWA”), which gives the EPA its veto power, cannot be invoked after the Corps issues a permit.5 The district court 1 HARRY M. CAUDILL, NIGHT COMES TO THE CUMBERLANDS, A BIOGRAPHY OF A DEPRESSED AREA x (1st ed. 1963). 2 Stopping a Massive Mountaintop Removal Coal Mine, EARTHJUSTICE, http://earthjustice.org/cases/2014/stopping-a-massive-mountaintop-removal-coal-mine (last visited Nov. 14, 2015). 3 U.S. ENVTL. PROT. AGENCY, FINAL DETERMINATION OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY PURSUANT TO § 404(C) OF THE CLEAN WATER ACT CONCERNING THE SPRUCE NO. 1 MINE, LOGAN COUNTY, WEST VIRGINIA, 10 (2011), http://water.epa .gov/lawsregs/guidance/cwa/dredgdis/upload/Spruce_No-_1_Mine_Final_Determination _011311_signed.pdf [hereinafter FINAL DETERMINATION]. 4 Mingo Logan Coal Co. v. EPA (Mingo Logan I), 850 F. Supp. 2d 133, 137 (D.D.C. 2012). Section 404(a) of the Clean Water Act (“CWA”) authorizes the Corps to “issue permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (2012). 5 Mingo Logan I, 850 F. Supp. 2d at 137. Section 404(c) of the CWA authorizes the EPA to issue a veto of a specified disposal site “whenever [it] determines . . . that the discharge BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 3 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters agreed and vacated the EPA’s veto.6 On appeal, the D.C. Circuit reversed and held that the EPA can veto a permit at any time because the EPA is the final authority on the discharge of mining waste.7 On remand, the veto was upheld as reasonable and supported by the record.8 When the EPA initially issued its veto, West Virginia Senator Joe Manchin declared the decision “fundamentally wrong,” “an unprecedented act,” and “an irresponsible regulatory step.”9 The Senator’s reaction is not surprising. The coal industry provides forty percent of electricity in the United States and plays an important part in West Virginia’s economy.10 Since the mid-1880s, the coal industry in Appalachia has produced over 12 billion tons of coal.11 As demand for Appalachia’s low sulfur coal increased, mining companies developed cheaper methods of extracting coal.12 One such method is called mountaintop removal mining, which involves removing the top of a mountain to expose and recover the coal within.13 To expose a coal seam, “[mountains] are filled with as much as ten times the explosives used in the Oklahoma City bombing [and] then detonated in series.”14 This process produces excess dirt and rock (“spoil”) that cannot be returned to the mined area.15 Typically, mining of [dredged and/or fill] material[] into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas . . . wildlife, or recreational areas.” 33 U.S.C. § 1344(c) (2012). 6 Mingo Logan I, 850 F. Supp. 2d at 153. 7 Mingo Logan Coal Co. v. EPA (Mingo Logan II), 714 F.3d 608, 613 (D.C. Cir. 2013). 8 Mingo Logan Coal Co. v. EPA (Mingo Logan III), 70 F. Supp. 3d 151, 170 (D.D.C 2014). 9 John M. Broder, Agency Revokes Permit for Major Coal Mining Project, N.Y. TIMES (Jan. 13, 2011), http://www.nytimes.com/2011/01/14/science/earth/14coal.html. 10 Robert Johnson, Wait Until You See What Our Coal Addiction Is Doing to West Virginia, BUSINESS INSIDER, (Feb. 14, 2014, 10:04 AM), http://www.businessinsider.com /west-virginia-coal-mining-2014-2. 11 Paul A. Duffy, How Filled Was My Valley: Continuing the Debate on Disposal Impacts, 17 NAT. RESOURCES & ENV’T. 143, 143 (2003). 12 Id. at 144. 13 CLAUDIA COPELAND, CONG. RESEARCH SERV., RS21421, MOUNTAINTOP MINING: BACKGROUND ON CURRENT CONTROVERSIES 1 (2015); see also Johnson, supra note 10 (providing images of the process and effects of mountaintop removal mining in West Virginia). 14 Sam Evans, Voices From The Desecrated Places: A Journey to End Mountaintop Removal Mining, 34 HARV. ENVTL. L. REV. 521, 524 (2010). 15 COPELAND, supra note 13, at 1. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 4 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 companies place the spoil in adjacent valleys, burying streams and creating valley fills.16 Mountaintop removal mining significantly harms the environment.17 In West Virginia, for example, mining companies extract coal from the oldest mountains in the world, which are “home to 255 species of birds, 78 types of mammals, 58 different reptiles, and 76 various amphibians.”18 The overall effects of mountaintop removal mining include: large scale deforestation, permanent losses of streams, reduction of species in mined areas, and increases in minerals that cause deformities in aquatic life found downstream of mined areas.19 Studies additionally show higher incidences of chronic illnesses, birth defects, and mortality among individuals living in coal-mining areas compared to individuals living in non-coal-mining areas.20 To operate a mountaintop removal mine, a company must comply with the CWA.21 Known as the “cornerstone” of the CWA, section 301 16 Id. 17 In 2005, several agencies, including the EPA and the Corps, conducted a study on mountaintop mining in Appalachia and concluded the following: approximately seven percent of forest area “has been or may be affected by recent and future (1992–2012) mountaintop mining”; species such as songbirds and salamanders have left mined areas; “1200 miles of headwater streams (or 2% of the streams in the study area) were directly impacted by [mountaintop removal mining]”; and streams in mined areas show an increase of minerals and more pollutant-tolerant macroinvertebrates and fish. See U.S. ENVTL. PROT. AGENCY, MOUNTAINTOP MINING/VALLEY FILLS IN APPALACHIA: FINAL PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT 4 (2005). 18 Johnson, supra note 10. 19 See Diana Kaneva, Let’s Face Facts, These Mountains Won’t Grow Back: Reducing the Environmental Impact of Mountaintop Removal Coal Mining in Appalachia, 35 WM. & MARY ENVTL. L. & POL’Y REV. 931, 933 (2011) (noting that mountaintop mining has destroyed 300 square miles of forest as of 2007); see also M.A. Palmer et al., Mountaintop Mining Consequences, 327 SCI. 148, 148 (2010) (explaining that streams below valley fills show increases in pH, electrical conductivity, and total dissolved solids, which corresponds to deformities in fish and reproductive failure in fish and birds). 20 See, e.g., Michael Hendryx & Melissa M. Ahern, Mortality in Appalachian Coal Mining Regions: The Value of Statistical Life Lost, 124 PUB. HEALTH. REP. 541, 542, 547 (2009) (showing mortality rates increases); Chronic Illness Linked to Coal-Mining Pollution, Study Shows, SCIENCEDAILY, Mar. 27, 2008, http://www.sciencedaily.com /releases/2008/03/080326201751.htm (“[A]s coal production increases, so does the incidence of chronic illness.”); Melissa M. Ahern, et al., The Association Between Mountaintop Mining and Birth Defects Among Live Births in Central Appalachia, 1996– 2003, 111 ENVTL. RESEARCH 838, 838–46 (2011) (noting increased birth defects). 21 See Chantz Martin, Comment, The Clean Water Act Suffers a Crushing Blow: The U.S. Supreme Court Clears the Way for the Mining Industry to Pollute U.S. Waters [Coeur Alaska, Inc. v. Southwest Alaska Conservation Council, 129 S. Ct. 2458 (2009)], 49 WASHBURN L.J. 933, 940–41 (2010). Typically, mining operations require a section 402 BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 5 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters deems it unlawful to discharge a pollutant except when that discharge complies with CWA sections 301, 306, 402, and 404, among others.22 Sections 301 and 306 instruct the EPA to establish effluent limitations and standards of performance, respectively, for certain categories of discharges.23 Under section 402, the EPA may “issue a permit for the discharge of any pollutant” that complies with any applicable effluent limitation or standard of performance.24 Under section 404, the Corps may “issue permits . . . for the discharge of dredged or fill material into navigable waters at specified disposal sites.”25 In 2009, it was an open question as to whether EPA pollution-control standards promulgated pursuant to sections 301 and 306 applied to section 404 discharges of dredged or fill material. The Supreme Court answered this question in the negative in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council.26 In this case, Coeur Alaska, Inc. operated a froth-flotation mine that discharged slurry into a lake and claimed that it did not have to comply with an EPA standard of performance because slurry qualified as fill material under section 404.27 The discharge was lawful, the argument went, because fill material was not subject to EPA standards of performance.28 The Court agreed.29 In a dissenting opinion, Justice Ginsburg voiced concerns, stating industries might attempt to “gain immunity” from pollution- control standards by turning their pollutants into fill.30 In response, Justice Breyer contended that the EPA’s veto authority would safeguard against such a result.31 Justice Ginsburg found this solution “hardly reassuring.”32 permit to discharge pollutants from a point source within the mine and a section 404 permit to discharge fill material. See Kaneva, supra note 19, at 944. 22 33 U.S.C. § 1311(a) (2012); see also Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs (SEACC II), 486 F.3d 638, 644–45 (9th Cir. 2007), rev’d sub nom. Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) (internal quotation marks omitted). 23 33 U.S.C. §§ 1311, 1316 (2012). 24 Id. § 1342(a). 25 Id. § 1344(a). 26 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 286 (2009). 27 Id. at 268. 28 Id. 29 Id. at 286. 30 Id. at 302 (Ginsburg, J., dissenting). 31 Id. at 293 (Breyer, J., concurring). 32 Id. at 303 n.5 (Ginsburg, J., dissenting). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 6 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 The purpose of this paper is to examine this debate between Justice Breyer and Justice Ginsburg—whether the EPA’s veto authority is an effective safeguard against evasive polluters—in light of the D.C. Circuit’s expansive interpretation of the EPA’s veto authority in Mingo Logan v. EPA (“Mingo Logan II”). The paper is divided into four parts. Part one describes the permitting process, which explains sections 301, 306, 402, and 404 of the CWA and the definition of fill material adopted in 2002. Part two reviews Coeur Alaska, including the parties’ arguments before the Court, the majority opinion, Justice Breyer’s concurring opinion, and Justice Ginsburg’s dissenting opinion. Part three discusses the facts and outcome of Mingo Logan II. Part four analyzes the significance and limitations of Mingo Logan II on the Justice Breyer and Justice Ginsburg debate, concluding that competing considerations reduce the effectiveness of the EPA’s veto. This finding confirms Justice Ginsburg’s assertion that the EPA’s veto authority is “hardly reassuring” to thwart polluters evading pollution-control standards. I THE PERMITTING PROCESS OF THE CWA In 1972, Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”33 One particular aim of the CWA is to eliminate “the discharge of pollutants into the navigable waters” of the United States.34 With these goals in mind, the CWA provides two permitting regimes, discussed infra, that companies must comply with in order to operate mountaintop removal mines. A. Sections 301, 306, 402, and 404 of the CWA The “cornerstone” of the CWA is section 301, which declares it “unlawful” to discharge a pollutant except when that discharge complies with CWA sections 301, 306, 402, and 404, among others.35 Section 301 instructs the EPA to adopt stringent effluent limitations for the discharge of pollutants from point sources, and once this limitation is promulgated, section 301(e) requires its application to all 33 33 U.S.C. § 1251 (2012). 34 Id. § 1251(a)(1). 35 Id. § 1311(a); see also SEACC II, 486 F.3d at 644–45 (internal quotation marks omitted). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 7 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters discharges.36 This scheme also exists in section 306 in which the EPA promulgates standards of performance that apply to all discharges.37 These effluent limitations and standards of performance are implemented through section 402 of the CWA, the National Pollutant Discharge Elimination System (“NPDES”) permit program, which authorizes the EPA to “issue a permit for the discharge of any pollutant[] or combination of pollutants.”38 The NPDES program is the “linchpin” of the CWA for it transforms applicable pollution-control standards into obligations for each discharger who holds a section 402 permit.39 Mountaintop removal mining projects require section 402 permits for discharges of pollutants “from a point source within the min[e].”40 A mountaintop removal mining project, however, could not obtain a section 402 permit for the discharge of spoil into valley fills because “valley fills would have a hard time meeting th[e] standard[s]” set forth in sections 301 and 306.41 For these discharges, the CWA sets forth an additional permitting program under section 404, which “operates as an exception to section 402.”42 A section 404 permit allows for the discharge of dredged or fill material.43 Specifically, section 404(a) authorizes the Corps to “issue permits . . . for the discharge of dredged or fill material into navigable 36 33 U.S.C. § 1311(b), (e) (2012). Effluent limitations are restrictions on “quantities, rates, and concentrations of chemical, physical, biological and other constituents which are discharged from point sources into navigable waters.” Id. § 1362(11) (2012). 37 33 U.S.C. § 1316(b), (e) (2012). Standard of performance “means a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.” Id. § 1316(a)(1). 38 33 U.S.C. § 1342(a) (2012). The CWA defines “the discharge of any pollutant” as “any addition of any pollutant to navigable waters from any point source” and “pollutant” as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Id. § 1362(12), (6). 39 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 300 (2009) (Ginsburg, J., dissenting). 40 Kaneva, supra note 19, at 944. 41 Evans, supra note 14, at 539. 42 Id. 43 33 U.S.C. § 1344(a) (2012). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 8 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 waters at specified disposal sites.”44 Section 404(b)(1) requires the Corps to apply guidelines developed by the EPA to determine whether to issue a section 404 permit.45 These guidelines require the Corps to determine the effects of the proposed discharge on the “physical, chemical, and biological components of the aquatic environment.”46 Section 404(c) subjects the Corps’ permitting authority to EPA oversight.47 Specifically, section 404(c) states: The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.48 In other words, the EPA can veto a specified disposal site whenever it determines that the discharge of fill material will have unacceptable adverse effects. The EPA takes several steps to issue its veto.49 First, the Regional Administrator notifies the District Engineer that it intends to issue a proposed determination to prohibit or withdraw a specified site.50 If the District Engineer does not show that corrective action will be taken, the Regional Administrator publishes the proposed determination.51 Individuals may comment on the proposed determination, and the Regional Administrator may hold a public hearing.52 After the comment period, the Regional Administrator prepares a recommended 44 Id. 45 Id. § 1344(b)(1). 46 40 C.F.R. § 230.11 (2015). 47 33 U.S.C. § 1344(c) (2012). 48 Id. 49 See generally Amy Oxley, No Longer Mine: An Extensive Look at the Environmental Protection Agency’s Veto of the Section 404 Permit Held by the Spruce No. 1 Mine, 36 S. ILL. U. L.J. 139 (2011). 50 40 C.F.R. § 231.3(a)(1) (2015). 51 Id. § 231.3(a)(2). 52 Id. § 231.4(a)–(b). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 9 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters determination to prohibit or withdraw a specified site.53 The Administrator then reviews the recommended determination and consults the Chief Engineer and permittee concerning corrective action.54 Finally, the Administrator makes “a final determination affirming, modifying, or rescinding the recommended determination.”55 B. The Definition of Fill Material Whether a discharge falls under the section 402 or section 404 permitting regime depends on whether that discharge meets the fill definition adopted in 2002. The CWA does not define “fill material,” and, for much of section 404’s history, the Corps and the EPA defined fill material differently.56 In 1977, the Corps adopted a primary purpose test which defined fill material as: [A]ny material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of an waterbody. The term does not include any pollutant discharged into the water primarily to dispose of waste, as that activity is regulated under section 402 of the Clean Water Act.57 This definition remained until 2002.58 The EPA, on the other hand, adopted an effects-based test in 1980, defining fill material as “any ‘pollutant’ which replaces portions of the ‘waters of the United States’ with dry land or which changes the bottom elevation of a water body for any purpose.”59 In 2002, the Corps and the EPA adopted the EPA’s effects-based test, defining fill material as follows: [T]he term fill material means material placed in waters of the United States where the material has the effect of: (i) [r]eplacing any portion of a water of the United States with dry land; or (ii) [c]hanging the bottom elevation of any portion of a water of the United States . . . [e]xamples of such fill material include, but are not limited to: rock, 53 Id. § 231.5(a). 54 Id. § 231.6. 55 Id. 56 See generally Nathaniel Browand, Shifting the Boundary Between the Sections 402 and 404 Permitting Programs by Expanding the Definition of Fill Material, 31 B.C. ENVTL. AFF. L. REV. 617 (2004). 57 33 C.F.R. § 323.2(e) (2001). 58 Browand, supra note 56, at 625. 59 Id. at 626. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 10 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 sand, soil, clay plastics, construction debris, wood chips, overburden from mining or excavation activities, and materials used to create any structure or infrastructure in the waters of the United States.60 Significantly, the lawfulness of the 2002 fill definition is an open question.61 In Kentuckians for Commonwealth, Inc. v. Rivenburgh, a mining company sought a section 404 permit to build fills and sediment ponds where it intended to dump excess mining spoil.62 The EPA and the Corps changed the definition of fill material “a few days before” the district court rendered its opinion.63 Notwithstanding the rule change, the district court granted an injunction to prevent the Corps from issuing the permit, holding that the “issuance of . . . permits solely for waste disposal” is unlawful and that the 2002 fill definition “exceed[ed] the agencies’ statutory authority granted by the CWA.”64 On appeal, the Fourth Circuit vacated and reversed the district court, holding the fill definition was not limited to beneficial use and that the district court “reached beyond the issues” when it declared the 2002 fill definition illegal.65 Additionally, in Coeur Alaska, the parties did not challenge the validity of the fill definition.66 At oral argument, the Justices demonstrated an interest in the issue. For example, in questioning the Solicitor General, Justice Souter stated, “I find it very difficult to get a handle on this case without dealing with [the validity of the fill definition].”67 Additionally, Justice Ginsburg asked both the Solicitor General and Petitioners about the primary purpose test that existed prior to 2002. To the Solicitor General, she asked: “How could the [fill definition] be settled, because isn’t it a fact that before 2002 if the 60 33 C.F.R. § 323.2 (e)(1) (2002). Commenters contend that the Bush Administration’s political agenda motivated this change. See, e.g., Kaneva, supra note 19, at 951; Evans, supra note 14, at 541–54; Matt Wasson, Obama Administration Can Still Protect Streams from Mountaintop Removal Mining, Despite Setback in DC Court, HUFFINGTON POST, Aug. 8, 2012, http://www.huffingtonpost.com/matt-wasson/mountaintop-removal-mining_b_17 38551.html. Others explain that a circuit court split motivated the agencies. See, e.g., Martin, supra note 21, at 942 n.91; Browand, supra note 56, at 632. 61 See Evans, supra note 14, at 548. 62 Kentuckians for Commonwealth, Inc. v. Rivenburgh (Rivenburgh II), 317 F.3d 425, 430–31 (4th Cir. 2003). 63 Id. at 438. 64 Kentuckians for Commonwealth, Inc. v. Rivenburgh (Rivenburgh I), 204 F. Supp. 2d 927, 945–46 (S.D. W. Va. 2002), rev’d 317 F.3d 425 (4th Cir. 2003). 65 Rivenburgh II, 317 F.3d at 439, 442. 66 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 276 (2009). 67 Oral Argument at 7, Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) (Nos. 07-984, 07-990), 2009 WL 62119 at *7. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 11 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters primary purpose was disposing of waste that the 402 permit applied?”68 To Petitioner, she commented: “[U]ntil 2002 . . . if the only reason of raising the elevation of the lake was to dispose of waste, you didn’t get a 404 permit.”69 Ultimately, this issue was not before the Court, and the majority opinion indicated that Respondent, in a subsequent action, “could claim that the fill regulation as interpreted is an unreasonable interpretation of § 404.”70 II THE PERMITTING PROCESS IN THE SUPREME COURT: COEUR ALASKA Coeur Alaska is not a case about coal mining; rather, it involves a gold mining company seeking a section 404 permit for a discharge that is simultaneously subject to a standard of performance under section 306. Significantly, Coeur Alaska raises concerns about whether the EPA’s veto is a sufficient safeguard against polluters seeking a section 404 permit to circumvent pollution-control standards imposed on section 402 permitees. A. Factual Background Forty-five miles south of Juneau, Coeur Alaska, Inc. planned to reinvigorate the Kensington Gold Mine by constructing a froth- flotation mill facility.71 This process involves transporting ore-bearing rock from the mine to a mill and, once at the mill, churning, crushing, and grinding the rock.72 The finely-ground rock is then fed into a tank in which chemicals and air attach to gold deposits, lifting them to the surface.73 After the gold deposits are skimmed off the top of these tanks, the tailings—residual rock—remain as waste.74 Coeur Alaska initially proposed to dispose of the tailings via a “dry tailings facility” in which the mine would deposit the tailings on nearby wetlands.75 68 Id. at 7–8. 69 Id. at 20. 70 Coeur Alaska, 557 U.S. at 276. 71 Brief for Petitioner Coeur Alaska, Inc. at 5, Coeur Alaska, 557 U.S. 261 (Nos. 07-984, 07-990), 2008 WL 4278528 at *5. 72 SEACC II, 486 F.3d 638, 641 (9th Cir. 2007). 73 Id. 74 Coeur Alaska, 557 U.S. at 267. 75 SEACC II, 486 F.3d at 641. 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LAW AND LITIGATION [Vol. 31, 1 When the price of gold dropped, Coeur Alaska sought a different disposal option: discharging the tailings directly into nearby Lower Slate Lake.76 The plan involved piping 210,000 gallons of wastewater, including 1,440 tons of tailings, each day in the form of slurry, which resulted in raising the elevation of the lake to fifty feet and killing the entire population of the lake’s fish and nearly all aquatic life.77 Once operations ended, Coeur Alaska would reclaim the lake and restore the fish population.78 Early on, the EPA recognized the adverse effects of discharging waste from mines using this froth-flotation technique.79 Pursuant to sections 301 and 306, in 1982, the EPA issued effluent limitations and standards of performance for sources within the ore-mining category, including gold mining.80 Specifically, for gold mines using froth- flotation, the EPA issued a zero-discharge standard.81 In other words, the EPA categorically precluded gold mines using froth-flotation from discharging processed wastewater into navigable waters of the United States.82 Concluding that the slurry raised the elevation of the lake and thus fell within section 404 of the CWA, the Corps disregarded the EPA performance standard and issued Coeur Alaska a section 404 permit to discharge slurry into Lower Slate Lake.83 B. Procedural Background The Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation (collectively “SEACC”) brought suit against 76 Brief for Petitioner Coeur Alaska, Inc., supra note 71, at *6. 77 Coeur Alaska, 557 U.S. at 296–97 (Ginsburg, J., dissenting). 78 Brief for Petitioner Coeur Alaska, Inc., supra note 71, at *6. Respondents argued that “[t]he discharge would kill all fish in Lower Slate Lake . . . [and] [w]hether aquatic life would be able to repopulate . . . is uncertain.” Brief for Respondents Se. Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation, Coeur Alaska, (Nos. 07-984, 07-990), 2008 WL 4892761 at *4 [hereinafter Brief for Respondent SEACC]. 79 Brief for Respondent SEACC at 8, Coeur Alaska, 557 U.S. 261 (Nos. 07-984, 07-990), at *8. 80 Ore Mining and Dressing Point Source Category Effluent Limitations Guidelines and New Source Performance Standards, 47 Fed. Reg. 54,598 (U.S. Envtl. Prot. Agency 1982) (to be codified at 40 C.F.R. pt. 440). 81 40 C.F.R. § 440.104(b)(1) (1988). 82 Id. 83 Coeur Alaska, 557 U.S. at 268. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 13 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters the Corps in the District Court of Alaska.84 Coeur Alaska, Inc. and the State of Alaska intervened.85 SEACC argued that, because the section 404 permit did not comply with the EPA’s restriction on froth-flotation mines it violated sections 306(e) and 311(e) of the CWA. Or, in the alternative, the regulation defining fill material was contrary to the CWA.86 Coeur Alaska and the State of Alaska claimed that the discharge of slurry from the mine was not subject to pollution-control standards because it met the fill definition and thus fell under the section 404 permitting regime, not section 402.87 The district court agreed with Coeur Alaska and the State. The court addressed SEACC’s first argument in a footnote, explaining that sections 301 and 306 were inapplicable if slurry fell within the 2002 fill definition.88 The court then focused on SEACC’s second argument and held that the fill definition was not contrary to the CWA because Congress “clearly and unequivocally” gave the agencies authority to issue regulations necessary to execute the CWA and thus are entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.89 The district court also explained that plaintiffs incorrectly overlooked statements in the adoption statement of the fill definition, which stated that “slurry” and “tailings” fell within the definition of fill material.90 Accordingly, the district court granted summary judgment in favor of Coeur Alaska and the State of Alaska.91 The Ninth Circuit reversed the district court on two grounds.92 First, the Ninth Circuit held that the plain language of the CWA requires that 84 Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs (SEACC I), No. 1:05- CV-00012-JKS, 2006 WL 5483382 (D. Alaska Aug. 3, 2006), rev’d, 479 F.3d 1148 (9th Cir. 2007). 85 Id. at *1. 86 Id. at *2–3. 87 Id. 88 Id. at *3 n.35. 89 Id. at *4. When interpreting a statute entrusted to an agency, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. requires courts to conduct a two-step analysis: first, a court examines “whether Congress has directly spoken to the precise question at issue,” and if so, the court “give[s] effect to the unambiguously expressed intent of Congress;” if the “statute is silent or ambiguous with respect to the specific issue,” courts then defer to the agency as long as its interpretation is “based on a permissible construction of the statute.” 467 U.S. 837, 843 (1984). 90 SEACC I, 2006 WL 5483382, at *5. 91 Id. 92 SEACC II, 486 F.3d at 644. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 14 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 the EPA pollution-control standards trump section 404.93 After finding that the regulations were “at odds” with each other, the Ninth Circuit analyzed the language of sections 301 and 306. Section 301(e) “applies effluent limitations established by the EPA to all discharges,” and section 306(e) “prohibits any discharge that does not comply with performance standards promulgated by the EPA.”94 Here, the Ninth Circuit found that sections 301 and 306 are blanket prohibitions and that no language in the CWA indicates an exception for section 404.95 Second, the Ninth Circuit held that neither the Corps nor the EPA intended for the “regulatory definition of ‘fill material’ to replace the performance standard for froth-flotation mills.”96 The court relied on the following three conclusions to support this finding: (1) the EPA issued its performance standard precluding froth-flotation without making an exception for section 404 discharges; (2) in adopting the fill definition, the agencies did not intend to change their long-standing practice in which the EPA regulates discharges subject to effluent limitations; and (3) the Corps communicated to Coeur Alaska during the permitting process that section 404 does not regulate froth-flotation discharges.97 Accordingly, the Ninth Circuit found that the Corps violated the CWA by issuing a permit to Coeur Alaska for discharges prohibited under an EPA performance standard pursuant to sections 301 and 306 of the CWA.98 C. The Supreme Court’s Decision Petitioners’ and Respondents’ arguments before the Court both employed a Chevron framework, but Petitioners focused on section 404 and Respondents focused on section 306.99 Specifically, Petitioner Coeur Alaska, Petitioner State of Alaska, and Federal Respondents argued the following: (1) the plain language of section 404 gives the Corps a clear mandate to issue permits for material that falls within the fill definition; (2) the plain language does not place any qualification on this authority; and (3) the section 404(b)(1) guidelines do not require 93 Id. 94 Id. at 642. 95 Id. at 648. 96 Id. 97 Id. at 649–53. 98 Id. at 655. 99 Id. at 640–43. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 15 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters section 404 permits to comply with EPA’s effluent limitations.100 As Solicitor General Garre stated in oral argument, “fill material trumps effluent.”101 Alternatively, Petitioners and Federal Respondents contended that if the Court found section 404 ambiguous, the agencies’ past practice indicated that fill material had never been subject to effluent limitations.102 Respondent SEACC focused on section 306, contending that its plain language categorically bars discharges not in compliance with a standard of performance.103 From this, Respondent SEACC argued that a discharge subject to a standard of performance, such as the slurry from the Kensington Mine, must fall within section 402 because section 404 does not provide for compliance with section 306.104 Alternatively, Respondent SEACC argued that if the Court found section 306 ambiguous, the agencies’ intent—which aimed to keep discharges subject to effluent limitations within the EPA’s control—should govern.105 The Court agreed with Petitioners. Justice Kennedy authored the majority opinion in which Chief Justice Roberts and Justices Thomas, 100 Brief for Petitioner Coeur Alaska, Inc., supra note 71, at *11–12 (“Section 404, however, gives the Corps a clear mandate and unambiguous instructions with respect to the issuance of permits for the discharge of fill material, and there is no dispute here that the Corps followed the commands of Section 404 to the letter.”); Brief for Petitioner State of Alaska at 20, Coeur Alaska, (Nos. 07-984, 07-990), 2008 WL 4278529 at *20 (“The plain language of Section 404 authorized the Corps to grant the permit at issue.”); Brief for the Federal Respondents Supporting Petitioners at 14, Coeur Alaska, (Nos. 07-984, 07-990), 2008 WL 4278530 at *14 (“The Act and the Section 404(b)(1) Guidelines require that discharges of fill material comply with toxic effluent limitations promulgated under Section 307, but they do not require compliance with other effluent limitations.”). 101 Oral Argument, supra note 67, at 5. 102 Brief for Petitioners Coeur Alaska, Inc., supra note 71, at *14 (“[T]he regulatory history further demonstrates that the Fill Rule applies to ‘any mining-related material that has the effect of fill when discharged.’”); Brief for Petitioners State of Alaska at 23, Coeur Alaska, (Nos. 07-984, 07-990), 2008 WL 4278529 at *23 (“[F]ormal agency regulations have consistently provided that: (1) discharges of fill material do not require EPA permits; (2) all such discharges are subject instead to the Corps’ authority under Section 404; and (3) such permits may be granted without strict adherence to EPA-promulgated effluent limitations.”); Brief for the Federal Respondents Supporting Petitioners at 17, Coeur Alaska, (Nos. 07-984, 07-990), 2008 WL 4278530 at *17 (“The Ninth Circuit’s selective reliance on statements from the preamble to the fill rule and on other regulatory history cannot trump the . . . agencies’ controlling construction of that text.”). 103 Brief for Respondent SEACC, supra note 78, at *20–21. 104 Id. at *21. 105 Id. at *23. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 16 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 Breyer, and Alito joined, as well as Justice Scalia in part.106 Justice Scalia wrote an opinion concurring in part and in judgment,107 Justice Breyer wrote a concurring opinion,108 and Justice Ginsburg wrote a dissenting opinion in which Justices Stevens and Souter joined.109 1. The Opinion of the Court The Court reversed the Ninth Circuit on two grounds.110 First, the Court found that the Corps had authority to issue a section 404 permit for the slurry discharge.111 Relying on the plain language of section 404 and EPA regulations, the Court concluded that section 404 does “not limit [the Corps’] power,” and EPA regulations do not preclude discharges subject to an EPA standard of performance.112 Second, the Court analyzed the statutory text, the agencies’ regulations, and the EPA’s interpretation of those regulations to conclude that section 306 does not apply to section 404 discharges.113 The Court found that the statutory text and formal agency regulations were ambiguous and did not resolve the tension between the sections.114 Accordingly, the Court employed Chevron Step Two and deferred to a 2004 Memorandum written by the Director of the EPA’s Wetlands, Oceans, and Watersheds to the Director of the EPA’s Office of Water.115 The 2004 Memorandum interpreted a formal EPA regulation, clarifying that effluent limitations did not apply to the tailings in Lower Slate Lake for the Kensington Mine.116 From here, the Court provided factors as for why the Memorandum should receive deference, including that the Kensington Mine was not a “project that smuggle[d] a discharge of EPA-regulated pollutants into a separate discharge of Corps-regulated fill material.”117 Concerns for such 106 Coeur Alaska, 557 U.S. at 265–91. 107 Id. at 295–96 (Scalia, J., concurring in part and in judgment). 108 Id. at 291–94 (Breyer, J., concurring). 109 Id. at 296–304 (Ginsburg, J., dissenting). 110 Id. at 290–91. 111 Id. at 277, 286. 112 Id. at 276. 113 Id. at 277. 114 Id. at 281–82 (“On the one hand, [section] 306 provides that a discharge that violates an EPA new source performance standard is ‘unlawful’ . . . [and] [o]n the other hand, [section] 404 grants the Corps blanket authority to permit the discharge of fill material . . . .”). 115 Id. at 282. 116 Id. at 284. 117 Id. at 285. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 17 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters projects arose in both Justice Breyer’s concurrence and Justice Ginsburg’s dissent, highlighting a potential loophole in the permitting process and demonstrating a need for adequate safeguards. 2. Justice Breyer’s Concurrence and Justice Ginsburg’s Dissent Justice Breyer and Justice Ginsburg separately discussed the potential for polluters to evade pollution control standards. Justice Breyer found that subjecting section 404 permits to performance standards would be “unnecessarily strict,” and CWA “safeguards” prevent polluters from “turning a ‘pollutant’ governed by [section] 306 into ‘fill’ governed by [section] 404.”118 Namely, the EPA’s veto is one such safeguard.119 Justice Ginsburg disagreed, contending that the majority’s interpretation of the CWA’s permitting scheme provides an “escape hatch” to “[w]hole categories of regulated industries” that may “gain immunity” so long as the pollutant “contains sufficient solid matter to raise the bottom of a water body.”120 Justice Ginsburg stated that this “loophole” would swallow “standards governing mining activities,” citing several EPA performance standards for ore mining and dressing, coal mining, and mineral mining.121 In response to Justice Breyer’s solution, Justice Ginsburg noted that the EPA’s veto is rarely used and that the “unacceptable adverse effects” standard is ineffective.122 Justice Ginsburg pointed to the case at bar as an example, and questioned why destroying an entire population of fish was not “unacceptable” enough to invoke the EPA’s veto.123 Accordingly, Justice Ginsburg characterized the veto as a “hardly reassuring” safeguard against evasive polluters.124 III THE VETO IN THE D.C. CIRCUIT: MINGO LOGAN II In Mingo Logan II, the D.C. Circuit ratified the EPA’s retroactive use of its veto authority to shut down portions of the Spruce No. 1 Mine. 118 Id. at 292–93 (Breyer, J., concurring). 119 Id. at 293. 120 Id. at 302–03 (Ginsburg, J., dissenting). 121 Id. 122 Id. at 303 n.5. 123 Id. 124 Id. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 18 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 This expansive interpretation of the EPA’s authority has the potential to transform the EPA veto into an effective safeguard against polluters seeking to take advantage of the permitting process. A. Factual Background Mingo Logan owned and operated the Spruce No. 1 Mine in West Virginia at the time the EPA issued its Final Determination.125 As originally proposed, the project required “construct[ing] six valley fills [and] associated sediment structures” to discharge “fill material into the Right Fork of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch and their tributaries.”126 As a result, this discharge would “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.”127 The Spruce No. 1 Mine was one of the largest mountaintop removal mining projects ever authorized in West Virginia.128 Mingo Logan applied for section 402 and section 404 permits to operate the Spruce No. 1 Mine. The EPA approved a section 402 permit authorizing Mingo Logan to discharge wastewater from sediment ponds into nearby streams.129 Mingo Logan sought a section 404 permit to discharge fill into the Right Fork of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch and their tributaries.130 Beginning in 1998, the Corps and the EPA reviewed Mingo Logan’s section 404 permit and communicated about the project’s effects on the surrounding habitat.131 In 2002, the Corps issued a draft Environmental Impact Statement (“EIS”) to which the EPA “found gaps in the analyses of the mine and related adverse environmental impacts.”132 In 2006, the Corps issued another draft EIS to which the EPA again expressed concerns about water quality, proposed mitigation efforts, environmental justice, and the cumulative effects of multiple mining operations.133 Months later, on September 22, 2006, the Corps issued its final EIS to which 125 FINAL DETERMINATION, supra note 3, at 6. 126 Id. 127 Id. 128 Id. at 15. 129 Mingo Logan III, 70 F. Supp. 3d 151, 154 (D.D.C. 2014). 130 FINAL DETERMINATION, supra note 3, at 19. 131 Id. at 18. 132 Mingo Logan III, at 158. 133 FINAL DETERMINATION, supra note 3, at 18–19. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 19 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters the EPA noted “its concerns had not been adequately addressed.”134 On January 22, 2007, the Corps issued Mingo Logan a section 404 permit despite the EPA’s lingering concerns.135 Nearly three years later, on September 3, 2009, EPA Region III requested that the Corps use its authority under 33 C.F.R. § 325.7 to “suspend, revoke, or modify” Mingo Logan’s section 404 permit, citing new information and recent data that revealed inadequately addressed impacts.136 When the Corps denied this request, the regional administrator published a proposed determination to veto specification of the Pigeonroost and Oldhouse Branch streams as disposal sites for section 404 discharges, and subsequently solicited and received over 50,000 comments.137 After this comment period, on September 24, 2010, the regional administrator submitted its recommended determination to EPA headquarters.138 Though the EPA provided Mingo Logan, the Corps, and other project proponents an opportunity to propose corrective action, Mingo Logan ultimately did not do so.139 On January 13, 2011, the EPA issued its Final Determination purporting to veto the “specification of [the] Pigeonroost Branch, Oldhouse Branch and their tributaries . . . as a disposal site for dredged or fill material in connection with construction of the Spruce No. 1 Surface Mine.”140 The EPA based its Final Determination on two grounds: (1) the fill discharge would bury approximately 6.6 miles of high-quality headwater streams, causing unacceptable adverse effects to wildlife habitat; and (2) the fill discharge would transform these streams into sources of pollutants that will impact wildlife downstream.141 B. Procedural Background After EPA Region III published its proposed determination, Mingo Logan filed a fourteen-count complaint in the U.S. District Court for 134 Id. at 19. 135 Mingo Logan III, at 159. 136 FINAL DETERMINATION, supra note 3, at 21. 137 Id. 138 Id. at 22. 139 Id. at 24. 140 Id. at 6. 141 Id. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 20 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 the District of Columbia.142 Once the EPA issued its Final Determination, Mingo Logan amended its complaint and challenged the EPA’s veto under the Administrative Procedure Act (“APA”).143 Parties filed cross-motions for summary judgment, and the district court entered an order requiring “argument [solely] on the question of whether the EPA had authority under section 404(c) of the Clean Water Act to withdraw its specification of the disposal site after the Corps had already issued a permit under section 404(a) of the Clean Water Act (Count I).”144 After hearing argument, the district court granted summary judgment in favor of Mingo Logan and held that the “EPA exceeded its section 404(c) authority.”145 To reach this conclusion, the district court reviewed the EPA’s interpretation of section 404(c) under Chevron.146 Under Chevron step one, the district court held that the statute’s plain language did not “clearly state that the EPA can withdraw its consent at any time, or whenever it sees fit, or even just ‘whenever.’”147 Moreover, as explained by the district court, section 404 as a whole and its legislative history indicated that the EPA could only invoke its veto before the Corps issued a permit.148 After finding the statute ambiguous, the district court moved to Chevron step two and found that the EPA’s interpretation of section 404(c) was unreasonable because it “posit[ed] a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration.”149 The court concluded that interpreting section 404(c) to allow the EPA to veto a permit post-issuance would undermine CWA’s principles of finality and certainty.150 C. The D.C. Circuit Opinion On appeal, the D.C. Circuit reversed and held that the EPA can invoke its veto authority at “any time.”151 Judge Henderson authored the opinion and, under Chevron step one, reasoned that the language of 142 Mingo Logan II, 714 F.3d 608, 611 (D.C. Cir. 2013). 143 Id. 144 Mingo Logan I, 850 F. Supp. 2d 133, 137 (D.D.C. 2012) (emphasis added). 145 Id. at 137–38. 146 Id. 147 Id. at 140. 148 Id. at 144, 147. 149 Id. at 152. 150 Id. 151 Mingo Logan II, 714 F.3d 608, 613 (D.C. Cir. 2013). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 21 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters section 404(c) unambiguously “imposes no temporal limits on the [EPA’s] authority to withdraw the Corp’s specification [and] instead expressly empower[s] [the EPA] to prohibit, restrict or withdraw the specification ‘whenever’ [the EPA] makes a determination that the statutory ‘unacceptable adverse effect’ will result.”152 The D.C. Circuit focused on the word, ‘whenever,’ reasoning that Congress purposefully used “the expansive conjunction” and that, under the dictionary definition, ‘whenever’ meant “[a]t whatever time, no matter when.”153 The court further explained that the “unambiguous language [of the statute] manifest[ed] the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.”154 The court additionally reviewed and rejected Mingo Logan’s arguments on statutory language and legislative history. The court did not agree that the language of section 404(c) required that the EPA withdraw a site specification before a permit is issued simply because specification itself occurs before a permit is issued.155 Additionally, the court rejected Mingo Logan’s contention that the EPA’s interpretation conflicted with section 404 “as a whole.”156 Here, the court emphasized the plain meaning of section 404(c) and stated not once, but twice, that the EPA has the final word on site specification.157 Lastly, the court found that the legislative history did not foreclose a veto post- issuance.158 Accordingly, the D.C. Circuit remanded the action to the district court to address the merits of Mingo Logan’s APA challenge.159 On remand, the remaining issue was whether the EPA’s Final Determination withdrawing the Pigeonroost Branch and Oldhouse Branch as disposal sites was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”160 Mingo Logan attacked the sufficiency of EPA’s conclusions in its Final Determination, but the district court concluded that the Final Determination “provided a reasonable explanation” for the veto to 152 Id. at 613 (first emphasis added). 153 Id. 154 Id. (emphasis added). 155 Id. at 614. 156 Id. at 615 (internal quotation marks omitted). 157 Id. at 614. 158 Id. at 616. 159 Id. 160 Mingo Logan III, 70 F. Supp. 3d 151, 161 (D.D.C 2014). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 22 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 which the court must defer.161 Accordingly, the district court granted summary judgment in favor of the EPA.162 IV THE SIGNIFICANCE AND LIMITATIONS OF MINGO LOGAN II FOR COEUR ALASKA In Mingo Logan II, the D.C. Circuit found that section 404(c) imposes no temporal restriction on the EPA and vests final authority in the EPA during the permitting process. This decision supports Justice Breyer’s contention found in Coeur Alaska that the EPA’s veto is an effective safeguard against evasive polluters. At the same time, competing considerations limit the D.C. Circuit’s broad interpretation of the EPA’s veto authority and, ultimately, outweigh the significance of Mingo Logan. A. The Significance of Mingo Logan II The literal import of Coeur Alaska is that performance standards do not apply to fill material, which may allow companies seeking to discharge pollutants to potentially sidestep EPA performance standards by turning such pollutants into fill material. As a result, the Supreme Court’s decision in Coeur Alaska favors the mining industry, which is typically subject to EPA effluent limitations and standards of performance.163 Mining companies might “apply to the Corps to try and discharge chemicals that should be regulated by the EPA” or “strategically think[] of ways to qualify their discharge for the less stringent 404 permits from the Corps.”164 Despite this concern, Mingo Logan II improves the landscape Coeur Alaska left behind for the following three reasons. First, the D.C. Circuit opinion validated the EPA’s role within the permitting process. Specifically, the court stated section 404 confers on the EPA a “broad veto power extending beyond the permit issuance.”165 Moreover, the court found that section 404 as a whole “makes equally clear . . . that 161 Id. at 162. 162 Id. 163 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 302 (2009) (Ginsburg, J., dissenting) (listing effluent limitations and performance standards for ore mining and dressing and mineral mining). 164 Kory R. Watson, Comment, Fill Material Pollution Under the Clean Water Act: A Need for Legislative Change, 35 S. ILL. U. L.J. 335, 349 (2011). 165 Mingo Logan Coal Co. v. EPA (Mingo Logan II), 714 F.3d 608, 613 (D.C. Cir. 2013). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 23 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters [the EPA] has, in effect, the final say.”166 The court reiterated this conclusion, stating “the statute expressly vests final authority over [site specification in the EPA].”167 At bottom, polluters aiming to manipulate the permitting process must pass muster with the EPA. Second, the D.C. Circuit emphasized that section 404(c) imposes no temporal restriction on the EPA’s authority to veto a specified site.168 The court based this conclusion on Chevron step one, focusing on the word ‘whenever’ in section 404(c).169 Specifically, Congress’s use of the “expansive conjunction ‘whenever’ . . . made plain its intent to grant the Administrator authority to [exercise its veto] at any time,”170 confirming that the EPA is not subject to a prescribed timeline. Thus, Mingo Logan II opens the proverbial door for the EPA’s review of previously issued section 404 permits. Third, Mingo Logan II sends a powerful message to mining companies considering the case’s factual background.171 The Spruce No. 1 Mine was the largest mountaintop removal mine ever authorized in West Virginia.172 If operated as planned, the Spruce No. 1 Mine would have supported $220 billion worth of economic activity each year.173 Furthermore, the Final Determination itself “block[ed] an additional $250 million investment and 250 well-paying American jobs.”174 The D.C. Circuit’s ratification of the EPA’s veto in light of such promising economic returns informs polluters of the economic risks involved with manipulating the permitting process. By emphasizing the EPA’s final authority in the permitting process, confirming the EPA’s retroactive use of the veto, and cautioning polluters of economic risks, Mingo Logan II challenges Justice 166 Id. at 614. 167 Id. (emphasis added). 168 Id. at 613. 169 See id.; see also Jason Bailey, Clean Water Act, Section 404 Application: May the Odds be Ever in your Favor, 3 AM. U. BUS. L. REV. 457, 466–68 (2014). 170 Mingo Logan II, 714 F.3d at 613. 171 See Bailey, supra note 170, at 481 (noting the D.C. Circuit opinion leaves business and investors “no safety net if they find themselves in a Mingo Logan situation”). 172 FINAL DETERMINATION, supra note 3, at 10. 173 Bryan Walsh, Mining: The EPA Vetoes a Mountaintop Removal Mine—and Industry Opponents Fire Back, TIME, Jan. 13, 2011, http://science.time.com/2011/01/13/mining-the -epa-vetoes-a-mountaintop-removal-mine—and-industry-opponents-fire-back/. 174 Id. (quoting Kim Link, a spokeswoman for Arch Coal, the company that now owns the Spruce Mine). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 24 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 Ginsburg’s contention that the EPA veto is not an effective safeguard.175 The question, however, is whether that challenge is enough to thwart evasive polluters. B. The Limitations of Mingo Logan II Notwithstanding the significance of Mingo Logan II, competing considerations limit the EPA veto as an effective safeguard against evasive polluters. These limitations include: the EPA’s own reluctance to invoke its veto authority, the uncertainty of the CWA’s citizen suit provision to compel the EPA to invoke its veto, coal’s economic influence at every level of government, changes in Administrations, and current legislative challenges to section 404(c) of the CWA. 1. EPA’s Use of its Veto and the CWA’s Citizen Suit Provision Since the CWA’s enactment in 1972, the EPA has exercised its veto a total of thirteen times, including its first retroactive veto of the Spruce No. 1 Mine.176 Moreover, three of those thirteen vetoes occurred within the last twenty-five years.177 Assuming the Corps reviews 60,000 permits per year, the Corps has evaluated 2.5 million permits since 1972; this means the EPA has used its veto 0.0005% of the time in the past forty-two years.178 As a result, the EPA’s veto is extraordinarily rare. Current EPA Administrator Gina McCarthy confirmed this rarity, stating “[t]his is not something that the agency does very often.”179 Naturally, the EPA’s reluctance to use its veto undercuts Justice Breyer’s reliance on section 404(c) and reduces the significance of Mingo Logan II. Given the rarity of the EPA veto, a citizen suit provision allowing individuals to compel the EPA to use its veto might strengthen Justice Breyer’s position. The CWA’s citizen suit provision provides that “any citizen may commence a civil action . . . against the [EPA] where there is alleged a failure of the [EPA] to perform any act or duty under [the 175 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 303 (2009) (Ginsburg, J., dissenting). 176 See U.S. ENVTL. PROT. AGENCY, CLEAN WATER ACT SECTION 404(C) “VETO AUTHORITY” FACT SHEET, http://water.epa.gov/type/wetlands/outreach/upload/404c.pdf. 177 See id. 178 See id. (60,000 permits per year x 42 years = 2,520,000 permits; (13 vetoes/2,520,000 permits) x 100 = 0.0005%). 179 Kate Sheppard, Senators Seek to Curb EPA Authority on Mine Waste Disposal, HUFFINGTON POST, Apr. 15, 2014, http://www.huffingtonpost.com/2014/04/15/epa-clean -water-act-mining_n_5153913.html. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 25 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters CWA] which is not discretionary.”180 Whether the EPA’s veto authority is nondiscretionary is disputed among circuit courts. In Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Engineers, in which plaintiffs challenged a proposed highway construction project, the Eleventh Circuit affirmed a lower court’s decision to dismiss plaintiffs’ claim under the CWA’s citizen suit provision.181 The court explained that the term, ‘authorize,’ found in section 404(c) suggests a discretionary function and “[b]ecause the [EPA’s veto] power is discretionary, the citizen suit provision of the Clean Water Act does not apply.”182 The D.C. Circuit agreed with the Eleventh Circuit in Alliance to Save the Mattaponi v. U.S. Army Corps of Engineers, in which plaintiffs challenged the construction of a reservoir.183 In that case, the D.C. Circuit found that the “veto power . . . is discretionary” and the “EPA cannot be sued under the [citizen suit provision] for failing to veto the issuance of the permit.”184 Conversely, in National Wildlife Federation v. Hanson, in which environmental groups complained about the EPA’s failure to invoke its veto authority, the Fourth Circuit found that section 404(c) is not discretionary, stating “[the citizen suit provision] should be interpreted . . . to allow citizens to sue the [EPA] [when] . . . the [EPA] fails to exercise the duty of oversight imposed by section [404(c)].”185 Although dicta, lower courts have interpreted Hanson “to mean that the EPA’s section 404(c) oversight duty is nondiscretionary.”186 The 180 33 U.S.C. § 1365(a)(2) (2012). 181 Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1249 (11th Cir. 1996). 182 Id. 183 Alliance to Save the Mattaponi v. U.S. Army Corps of Eng’rs, 515 F. Supp. 2d 1, 3 (D.C. Cir. 2007). 184 Id. at 4–5. Significantly, the D.C. Circuit found that the CWA citizen suit provision does not preclude suits under the APA. Id. at 9. The court explained that the APA does not “bar judicial review of EPA’s failure to veto [a] permit simply because that failure constitute[s] alleged inaction.” Id. The court then concluded that a reviewing court has subject matter jurisdiction over a claim alleging that the EPA wrongly failed to exercise discretion in their favor under section 706(2) of the APA, which permits courts to hold unlawful and set aside agency action found to be arbitrary and capricious. Id. at 9–10. 185 Nat’l Wildlife Federation v. Hanson, 859 F.2d 313, 316 (4th Cir. 1988). 186 Christopher D. Eaton, Judicial Limitation of the EPA’s Oversight Authority in Clean Water Act Permitting of Mountaintop Mining Valley Fills, 2 MICH. J. ENVTL. & ADMIN. L. 225, 254 (2012). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 26 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 Supreme Court has not decided whether the veto is nondiscretionary.187 Without such clarity, citizens may or may not be able to compel the EPA to invoke its veto authority, producing another limit on the EPA’s use of its veto power. 2. Coal’s Economic Influence on the Legislative, Executive, and Judiciary Branches The coal industry itself is an additional obstacle preventing the EPA from freely invoking its authority under section 404(c).188 In her dissent, Justice Ginsburg subtly raised such a concern, stating “[g]iven today’s decision, it is optimistic to expect that [the] EPA or the courts will act vigorously to prevent evasion of performance standards.”189 Coal’s influence on the legislative, executive, and judiciary branches prevents such vigorous action. The coal industry contributes millions of dollars to state and federal political candidates. In Let’s Face Facts, These Mountains Won’t Grow Back: Reducing the Environmental Impact of Mountaintop Removal Coal Mining in Appalachia, Diana Kaneva detailed the contributions running from coal to state candidates.190 Citing a report from the Institute on Money in State Politics, Kaneva reported that coal mining contributed “at least $8.57 million to state-level political candidates and party committees” between 1999 and 2005.191 In West Virginia, the coal industry gave “$2 million to gubernatorial campaigns, $1.5 million to state legislative races, and $529,332 to Supreme Court candidates” during 1996 to 2004.192 For example, Senator Manchin— the West Virginia Senator who pledged to fight the EPA’s veto of the Spruce No. 1 Mine193—received $285,000 from the mining industry from 2000 to 2008 to run for Secretary of State and Governor of West 187 The discretionary nature of the EPA veto arose during an exchange between Justice Scalia and Respondent SEACC’s counsel during oral argument in Coeur Alaska. In response to one of Justice Scalia’s questions concerning the veto, Respondent stated that “the veto authority is a discretionary authority” to which Justice Scalia responded, “right.” Oral Argument, supra note 67, at 47. This may or may not reflect Justice Scalia’s viewpoint on whether the veto is discretionary. In any event, this exchange is not binding on any court and was not pertinent to the issues before the Court in Coeur Alaska. 188 Kaneva, supra note 19, at 954. 189 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 303 n.5 (2009) (Ginsburg, J., dissenting). 190 Kaneva, supra note 19, at 954. 191 Id. 192 Id. 193 Broder, supra note 9. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 27 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters Virginia.194 As a result, “running a political campaign against the coal industry in the Appalachian region is an election failure guarantee.”195 Coal additionally extends its influence at the federal level. The Center for Responsive Politics reported that the coal industry contributed approximately $11 million during the 2014 election cycle with 96% of those contributions delivered to Republican candidates.196 Arch Coal, the current owner of the Spruce No. 1 Mine, was the sixth highest contributor, giving 89.8% of its $415,575 donation to Republicans.197 Notably, West Virginia Senator Manchin is the only Democrat “among the top twenty recipients of campaign money from the mining industry,” receiving over $600,000.198 Moreover, Senator Mitch McConnell, the Senate Majority Leader, received the second highest amount of contributions from coal mining.199 Significantly, Senator McConnell’s top priority is to rein in the EPA.200 The mining industry also contributes heavily to the executive branch, particularly donating millions of dollars to Republican presidential candidates. In the 2012 election, for example, presidential candidate Mitt Romney raised “more than $600,000 from mining 194 Pete Quist, Names in the News: Gov. Joe Manchin, NATIONAL INSTITUTE ON MONEY IN STATE POLITICS, (Aug. 8, 2010), http://beta.followthemoney.org/research/institute -reports/names-in-the-news-gov-joe-manchin/. 195 Mark Baller & Leor Joseph Pantilat, Defender’s of Appalachia: The Campaign To Eliminate Mountaintop Coal Mining and the Role of Public Justice, 73 ENVTL. L. 629, 656 (2007) (quoting an interview with Joe Hecker, the Environmental Enforcement Director at Public Justice). 196 Coal Mining: Long-Term Contribution Trends, CENTER FOR RESPONSIVE POLITICS, https://www.opensecrets.org/industries/totals.php?cycle=2014&ind=E1210 (last visited Nov. 14, 2015). 197 Coal Mining: Top Contributors to Federal Candidates, Parties, and Outside Groups, CENTER FOR RESPONSIVE POLITICS, https://www.opensecrets.org/industries/contrib.php ?cycle=2014&ind=E1210 (last visited Nov. 14, 2015). 198 Evan Osnos, Chemical Valley, THE NEW YORKER, Apr. 7, 2014, http://www.new yorker.com/magazine/2014/04/07/chemical-valley. 199 Coal Mining: Top Recipients, CENTER FOR RESPONSIVE POLITICS, https://www .opensecrets.org/industries/recips.php?cycle=2014&ind=E1210 (last visited Nov. 14, 2015). 200 Morgan Winsor, Sen. Mitch McConnell ‘Going To War’ With Obama Over Coal, INTERNATIONAL BUSINESS TIMES (Nov. 15, 2014), http://www.ibtimes.com/sen-mitch -mcconnell-going-war-obama-over-coal-1724366; see also Ari Phillips, Mitch McConnell Says His Top Priority Is To ‘Get The EPA Reined In, THINKPROGRESS (Nov. 7, 2014), http://thinkprogress.org/climate/2014/11/07/3590277/mcconnell-priority-rein-epa/. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 28 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 interests” by August 2012.201 In the 2008 election, President Barak Obama was not among the list of the top twenty recipients of contributions from coal while Senator John McCain raised $121,276 from the industry.202 West Virginia politics is illustrative of coal’s influence on presidential elections. Prior to electing President George W. Bush in 2000, the state had not voted for a non-incumbent Republican presidential candidate since 1928.203 President Franklin D. Roosevelt established Democratic control of the state when he developed relief programs during the Great Depression, and President John F. Kennedy did the same when he promised to introduce aid to combat poverty in Appalachia.204 In 1999, Karl Rove, Bush’s campaign strategist, opened eighteen offices across West Virginia and sought donations from the coal industry, receiving triple the amount from the previous election.205 Bush’s campaign convinced voters that the state’s coal industry was under attack by the Clinton Administration, citing President Clinton’s support of Bragg v. Robertson, in which a West Virginia district court issued an injunction blocking a mountaintop removal mining project.206 West Virginians grew concerned that the ruling would eliminate jobs and, in the 2000 election, voted for President Bush.207 West Virginia has voted for a Republican nominee ever since.208 Lastly, the judiciary is not wholly immune from the influence of coal mining interests. At the state level, industry “pours money into state Supreme Courts,”209 rendering it difficult for elected judges to remain completely free from partiality and sympathy.210 An extreme example 201 Paul Blumenthal, Mitt Romney Energy Plan Favors Big Donors in Oil, Gas and Coal Industries, HUFFINGTON POST (Aug. 24, 2012), http://www.huffingtonpost.com/2012/08 /24/mitt-romney-energy-plan_n_1826681.html. 202 Aaron Kierch, Coal Mining: Background, CENTER FOR RESPONSIVE POLITICS, https://www.opensecrets.org/industries/recips.php?cycle=2008&ind=E1210 (last updated June 2015). 203 Osnos, supra note 198. 204 Id. 205 Id.; see also Kaneva, supra note 19, at 955 (noting that coal mining contributed close to $4 million to George W. Bush’s campaign). 206 John Judis, King Coal, THE AMERICAN PROSPECT (Dec. 5, 2002), http://prospect .org/article/king-coal-0. 207 Id. 208 Betsy Woodruff, Goodbye West Virginia, SLATE (Oct. 29, 2014, 8:38 PM), http://www.slate.com/articles/news_and_politics/politics/2014/10/republicans_are_turning _west_virginia _red_how_the_democrats_lost_control.html. 209 Kaneva, supra note 19, at 955. 210 Id. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 29 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters of coal’s influence on the judiciary came before the Supreme Court in Caperton v. A. T. Massey Coal, Co.211 In this case, a West Virginia jury returned a verdict that found defendant Massey Coal liable for “fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations” and awarded plaintiff Caperton $50 million in damages.212 After the verdict but before the defendant’s appeal, West Virginia held judicial elections, in which Donald Blankenship, the defendant’s President, Chief Executive Officer, and Chairman, donated $3 million to then attorney Brent Benjamin’s campaign for a position on the West Virginia Supreme Court of Appeals—the court that would hear the appeal of the Caperton verdict.213 Benjamin won the election and, after denying plaintiff’s recusal motion, presided over the appeal and reversed the jury verdict.214 Justice Benjamin denied two subsequent motions requesting his recusal.215 The Supreme Court remanded the action, finding that the “extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome,” and “due process require[d] recusal.”216 Additionally, at the federal level, the increase of Republican politicians over the last twenty-five years has corresponded to an increase in judicial appointments in federal courts.217 Republican Administrations “have transformed the judiciary into a much more conservative branch.”218 For example, after the Fourth Circuit overturned two key district court opinions that held valley fills illegal, it gained the reputation “as friendly to the coal industry.”219 211 Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). 212 Id. at 872. 213 Id. at 873–74. 214 Id. at 874. 215 Id. at 875. 216 Id. at 872. 217 Baller & Pantilat, supra note 195, at 657. 218 Id. 219 Evans, supra note 14, at 532; see also Ann C. Hodges, Lessons from the Laboratory: The Polar Opposites on the Public Sector Labor Law Spectrum, 18 CORNELL J.L. & PUB. POL’Y 735, 759 (2009) (“The United States Court of Appeals for the Fourth Circuit, the federal circuit court covering Virginia, has a reputation as the most conservative appeals court in the country.”). BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 30 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 The industry’s ability to contribute funding to individuals at every level of government is “pervasive and disturbing.”220 More importantly, coal industry contributions can potentially influence environmental policies and judicial decisions at the state and federal level, simultaneously solidifying a favorable atmosphere for mining projects and an unfavorable atmosphere for the EPA veto. 3. Changes in Administrations The political agenda of the Administration in charge may also impact the EPA’s veto authority and reduce its ability to prevent polluters seeking to evade CWA sections 301 and 306. The White House not only appoints agency heads but also exerts political pressure on certain agencies to align regulations with party interests.221 For example, the controversial 2002 fill definition demonstrates how three different Administrations influenced agencies with party political objectives. The development of the 2002 fill definition began in 1999 when Bragg threatened the practice of mountaintop removal mining.222 In Bragg, the district court found, among other things, that the Corps did not have authority to regulate fill material from mountaintop removal mining projects when discharged “for the primary purpose of waste disposal.”223 The Fourth Circuit ultimately reversed the injunction on sovereign immunity grounds, but upheld a settlement agreement between plaintiffs and the Federal defendants in which the Clinton Administration promised to closely examine mountaintop removal mining permits.224 From here, the Clinton Administration proposed a fill definition that “would allow mining debris to be deposited in streams, but only as part of a comprehensive approach that would 220 Kaneva, supra note 19, at 956. 221 For example, a New York Times article published an account from an EPA official that indicated the EPA was “told to take our clean water and clean air cases, put them in a box, and lock it shut.” Charles Duhigg, Clean Water Laws are Neglected, at a Cost in Suffering, N.Y. TIMES, Sept. 12, 2009, http://www.nytimes.com/2009/09/13/us/13water .html. 222 Bragg v. Robertson (Bragg I), 72 F. Supp. 2d 642 (S.D. W. Va. 1999), rev’d sub nom. Bragg v. W. Va. Coal Ass’n (Bragg II), 248 F.3d 275 (4th Cir. 2001). 223 Id at 657. 224 Bragg II, 248 F.3d at 286; see also Settlement Agreement, Bragg v. Robertson, Civ. No. 2:98-0636 (S.D. W. Va. Dec. 23, 1998) available at http://www.epa.gov/region03 /r3pol/hsettle.pdf. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 31 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters address long-term environmental concerns.”225 The proposal failed due to the upcoming election.226 During his presidential campaign, President Bush attacked the Clinton Administration for its approval of Bragg and promised the coal industry to “expand” and not limit “energy supplies . . . in Appalachia.”227 Shortly after the election, environmentalists brought suit against the Corps in Kentuckians for the Commonwealth v. Rivenburgh to challenge the dumping of mining waste into streams.228 At this time, President Bush revived the Clinton rule but changed “the kinds of materials that could be classified as ‘fill.’”229 Consequently, a few days before the district court rendered the Rivenburgh decision, the Bush Administration redefined “mining debris . . . to ‘fill’ rather than ‘waste.’”230 Though the district court granted plaintiffs’ motion for summary judgment, contending that the “rewriting [of the fill definition] exceed[ed] the authority of administrative agencies,” the Fourth Circuit reversed, holding that the district “reach beyond the issues” when it declared the fill definition unlawful.231 Accordingly, mountaintop removal mining “grew exponentially” under President Bush’s Administration.232 When President Obama entered office, “more than one hundred surface mining permit applications were pending with the Corps.”233 Although in a January 2010 interview EPA Administrator Lisa Jackson mentioned that the EPA was considering a revision of the fill rule and 225 Joby Warrick, Appalachia Is Paying Price for White House Rule Change, WASH. POST, Aug. 17, 2004, at A01, http://www.washingtonpost.com/wp-dyn/articles/A6462 -2004Aug 16.html. 226 Id. 227 Christopher Drew & Richard A. Oppel Jr., Mines to Mountaintops: Rewriting Coal Policy; Friends in the White House Come to Coal’s Aid, N.Y. TIMES, Aug. 9, 2004, http://www.nytimes.com/2004/08/09/us/mines-mountaintops-rewriting-coal-policy-friends -white-house-come-coal-s-aid.html. 228 Kentuckians for the Commonwealth, Inc. v. Rivenburgh (Rivenburgh I), 204 F. Supp. 2d 927 (S.D. W. Va. 2002). 229 Joby Warrick, supra note 225. 230 Jessica Adams, Note, One Little Word Can Make All the Difference: Literal Interpretation Leads to Lake Destruction, 17 MO. ENVTL. L. & POL’Y REV. 436, 441 (2010). 231 Kentuckians for the Commonwealth, Inc. v. Rivenburgh (Rivenburgh II), 317 F.3d 425, 438 (4th Cir. 2003). 232 Laura K. Bomyea, Dynamite, Disaster and Disappearing Options: How the EPA is Losing the Battle Against Destructive Mountaintop Removal Coal Mining Practices, 6 ALB. GOV’T L. REV. 224, 233 (2012). 233 Id. at 241. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 32 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 stated her staff was ‘working on it now,’”234 the Obama Administration did not approach the backlog of surface mining permit applications by changing the fill definition.235 Instead, the Obama Administration—the EPA, the Department of the Interior, and the Corps—initiated the following policies to curb mountaintop removal mining: a 2009 Memorandum outlining Enhanced Coordination Procedures, a 2010 Interim Detailed Guidance Memorandum, and a 2011 Final Detailed Guidance Memorandum to improve agency review of mining projects.236 As a result, the Administration has slowed issuance of section 404 permits to a “trickle.”237 The above history of the 2002 fill definition serves to highlight the difficulties of adopting consistent environmental policy regarding mining operations and the CWA. In the same vein, the Coeur Alaska Court relied on an EPA memorandum to render its decision that section 306 did not apply to section 404. Given an Administration’s influence on an agency’s policy and position, it stands to reason that the EPA could simply issue a new memorandum that promulgates a rule that states section 306 does apply to section 404.238 The ease with which agency policies can be changed renders the EPA’s veto vulnerable to the edicts of the Administration in charge. 4. Current Legislative Challenges to the EPA’s Veto Authority An additional limitation of Mingo Logan II is current legislative action attempting to curb the EPA’s authority under section 404(c). After the EPA issued its Final Determination of the Spruce Mine, the 111th and 112th Congresses introduced bills to delete section 404(c) and remove the EPA’s veto authority altogether.239 Other proposals aimed to reduce the EPA’s veto authority by imposing deadlines on the 234 Paul Quinlan, EPA Loses Enthusiasm for Swift Rollback of Bush ‘Fill Rule,’ N.Y. TIMES, Feb. 25, 2011, http://www.nytimes.com/gwire/2011/02/25/25greenwire-epa-loses -enthusiasm-for-swift-rollback-of-bus-27352.html. 235 Id. In February 2011, the EPA issued the following statement: “We don’t have plans to move forward at this time with guidance or rulemaking on the definition of fill material.” Id. 236 Bomyea, supra note 232, at 242–45. 237 Id. 238 David R. Struwe, Casenote, Muddying the Waters of the Clean Water Act: Applying Chevron Deference to the CWA Pollutant Permit Regulatory Scheme in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 29 TEMP. J. SCI. TECH. & ENVTL. L. 171, 199 (2010). 239 See COPELAND, supra note 13, at 16. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 2015] Justice Ginsburg Is Right: The EPA’s Veto Authority 33 Under the Clean Water Act Is “Hardly Reassuring” Against Evasive Polluters EPA, elevating the decision to higher agency officials, or precluding retroactive vetoes.240 After Mingo Logan II, the 113th Congress introduced four bills targeting section 404(c).241 Two bills, H.R. 524 and S. 830, aimed to prohibit the EPA from issuing vetoes retroactively.242 The third bill, S. 2156, sought to limit section 404(c) actions by precluding the EPA from issuing vetoes retroactively and invalidating vetoes previously issued retroactively, such as the Spruce No. 1 Mine.243 The fourth bill, H.R. 4854, would require the EPA to wait for the Corps to render a permit before exercising its veto authority.244 In short, section 404(c) is politically vulnerable. If the above- mentioned bills succeed, the EPA is completely removed from the section 404 permitting process, rendering Mingo Logan II wholly insignificant. While Justice Ginsburg deemed the EPA veto as “hardly reassuring,” the lack of an EPA check on the Corps’ permitting authority could produce the precise results raised in her dissent: polluters turning discharges subject to effluent limitations and standards of performance into fill material.245 CONCLUSION The EPA sent a powerful message to the coal industry with the veto of the Spruce No. 1 Mine. Despite promising economic returns, the EPA focused on the harmful effects of mountaintop removal mining and took a giant leap toward achieving the CWA’s forty-two year old goals. Mingo Logan II additionally has the potential to thwart polluters attempting to manipulate the CWA permitting process. In Coeur Alaska, Justice Ginsburg exposed a potential “loophole” in the CWA permitting regime and raised concerns that “[w]hole categories of regulated industries” may “gain immunity” from pollution control standards by turning pollutants into fill material.246 In response, Justice 240 See id. 241 See id. at 16–17. 242 H.R. 524, 113th Cong. (2014); S. 830, 113th Cong. (2014). 243 S. 2156, 113th Cong. (2014). 244 H.R. 4854, 113th Cong. (2014). 245 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 303 n.5 (2009) (Ginsburg, J., dissenting). 246 Id. at 302. BAHADUE (DO NOT DELETE) 4/13/2016 11:04 AM 34 J. ENVTL. LAW AND LITIGATION [Vol. 31, 1 Breyer cited the EPA’s veto authority as an effective safeguard against such a result.247 Mingo Logan II supports Justice Breyer’s position and improves the landscape Coeur Alaska left behind. At the same time, Justice Ginsburg rightly expressed her skepticism in response to Justice Breyer’s reliance on the EPA’s veto.248 Competing considerations limit the significance of Mingo Logan II. These include: the rarity in which the EPA invokes it veto, the uncertainty surrounding the CWA’s citizen suit provision, the coal industry’s economic influence at every stage of government, changes in Administrations, and current legislative challenges to the veto.249 In short, Justice Ginsburg is correct in saying that the EPA’s veto is “hardly reassuring” as an effective safeguard against evasive polluters.250 Mingo Logan II is a powerful step in regulating mountaintop removal mining, but the decision may not be powerful enough. As Henry Caudill writes, coal “is an extractive industry, which takes all and restores nothing.”251 Despite the potential of Mingo Logan II to reduce this “extractive industry,” the foregoing competing considerations enable coal to continue to “take[] all” and “restore[] nothing.”252 247 Id. at 293 (Breyer, J., concurring). 248 Id. at 303 n.5 (Ginsburg, J., dissenting). 249 See supra Part IV.B. 250 Coeur Alaska, 557 U.S. at 303 n.5 (Ginsburg, J., dissenting). 251 CAUDILL, supra note 1. 252 Id.