Howe, Mark Terzaghi

English

University of Denver

Water Law Review Volume 8 Issue 2 Article 16 1-1-2005 Citizens Coal Council v. United States Env'tl. Prot. Agency, 385 F.3d 969 (6th Cir. 2004) Mark Terzaghi Howe Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Mark Terzaghi Howe, Court Report, Citizens Coal Council v. United States Env'tl. Prot. Agency, 385 F.3d 969 (6th Cir. 2004), 8 U. Denv. Water L. Rev. 633 (2005). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSquest for the pollution reports granted ACA standing. The court re-versed the district court's decision and remanded the case for furtherproceedings.Thomas JantunenCitizens Coal Council v. United States Env'tl. Prot. Agency, 385 F.3d969 (6th Cir. 2004) (holding the Environmental Protection Agency'sFinal Rule adding new subcategories to the Coal Mining Point Sourcecategory under the Clean Water Act exceeded the Agency's statutorymandate).The Kentucky Resources Council and the Citizens Coal Council(together "Councils") petitioned the United States Court of Appealsfor the Sixth District to review an Environmental Protection Agency("EPA") rule ("Final Rule") propagated under the Clean Water Act("CWA") that applied to the effluent emissions from coal mining op-erations.The CWA assigned EPA the duty to identify pollution controlmeasures and practices for various pollution point sources. EPA cre-ated categories of pollution point sources so that EPA could establisheffluent limitation guidelines for various industries. Within the CoalMining Point Source Category, EPA created four subcategories. EPAdid not create a subcategory for remining operations on previouslymined, but then abandoned, land. As technology for remining im-proved, which made remining a feasible option, the costs associatedwith complying with EPA effluent regulations under the existing cate-gories prevented miners from engaging in remining activities.In response to the need for legislation to allow remining, Congresspassed the Rahall Amendment to the CWA. This amendment createda modified permit for remining operations and required only that pol-lution emissions not exceed levels present before commencement ofthe remining operation.EPA created two new subcategories for remining operations underthe Coal Mining Point Source category: the Coal Remining Subcate-gory and the Western Alkaline Coal Mining Subcategory. The Coun-cils claimed both new subcategories were inconsistent with the CWAand the Rahall Amendment and were therefore invalid.The court first considered whether EPA had the authority to createsubcategories inconsistent with the Rahall Amendment. The RahallAmendment authorized remining permits only when effluent emis-sions from the remining activity would be less than pre-remining emis-sions. The Final Rule allowed a permitting authority to grant a CoalRemining permit in situations where that authority could not collectbaseline measurements but concluded that remining would reduceeffluent emissions. A permitting authority could issue these permits atits discretion, bypassing the Rahall Amendment's requirement of base-Issue 2WATER LA W REVIEWline measurements. The court concluded that the Rahall Amendmentcreated an opt-in modified permit and did not limit EPA's authority tocreate new subcategories consistent with the CWA.The court held the Final Rule was inconsistent with the CWA. TheCWA directed EPA to determine the technology available and applica-ble for each category of operation to reduce emissions before EPA de-cided what level of emissions would be reasonably attainable. Underthe Final Rule, a permitting authority first determined the permissiblelevel of emissions, and then determined what technology the miningoperation should use to attain those levels. The CWA also set forth alist of factors for EPA to consider in determining the best technologyto control effluent. The court stated that EPA was unable to show thatEPA considered all of the factors mandated by the CWA. The courtheld that, by adopting the Final Rule, EPA did not fulfill the CWA re-quirement that EPA should consider technology available in determin-ing an attainable level of pollution emission.A dissenting opinion by Judge Suhrheinrich stated that the courtincorrectly found that EPA must consider the technology available andthe effluent limits in any specific order. The dissent also stated thatthe original complaint failed to plead the issue of whether EPA consid-ered all relevant factors as required by the CWA, and therefore shouldnot have been a factor in the decision. Finally, the dissent argued thatthe CWA did not require that EPA assign numerical limitations on ef-fluent. The CWA only required that EPA identify the amount of pol-lutants. The dissent suggested an interpretation of the word "amount"not requiring specification of numerical limits.The court thus held that both of the new subcategories created bythe Final Rule were inconsistent with the CWA, making the Final Ruleinvalid. The court remanded the case to the EPA with instructions towithdraw or amend the Final Rule.Mark Terzaghi HoweNINTH CIRCUITKlamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d989 (9th Cir. 2004) (holding that NEPA compliance requires a federalagency to thoroughly evaluate potential cumulative environmental af-fects of proposed projects with individually minor potential of causingenvironmental harm, and make that information available to the pub-lic before proceeding with the project).The Bureau of Land Management ("BLM") executed two of fourplanned timber sales in the South Fork Little Butte Creek ("SFLBC")watershed in the Cascade Mountains in Southwest Oregon. The BLMproduced a different environmental assessment ("EA") for each of theVolume 8

Citizens Coal Council v. United States Env\u27tl. Prot. Agency, 385 F.3d 969 (6th Cir. 2004)

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Citizens Coal Council v. United States Env\u27tl. Prot. Agency, 385 F.3d 969 (6th Cir. 2004)

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