Court Finds Coal Company Failed To Preserve Cost Claims In CWA Veto Suit

摘要

The U.S. Court of Appeals for the District of Columbia Circuit in a split decision is upholding EPA's Clean Water Act (CWA) decision to block disposal sites underlying a final permit for a West Virginia coal mine, finding that the mining company failed to preserve its claims that the agency must consider costs of blocking the project. Both the narrowly written majority opinion by Judge Karen LeCraft Henderson and a vigorous dissent written by Judge Brett Kavanaugh, however, leave the door open for future rulings that EPA must consider a company's reliance costs associated with a project when making decisions under CWA section 404(c), the agency's so-called veto authority, particularly when a final permit has already been issued by the Army Corps of Engineers.