AGC of America has joined with the National Association of Manufacturers, the American Society of Civil Engineers, the American Council of Engineering Companies and several other trade associations in filing a friend-of-the-court (amicus) brief in the U.S. Supreme Court in support of Mingo Logan Coal Company’s lawsuit against the U.S. Environmental Protection Agency (EPA). Mingo’s suit challenges whether EPA has broad discretion to withdraw disposal sites from a Section 404 (wetlands) permit long after the U.S. Army Corp of the Engineers issued it, or whether the Corp is the only federal agency with the authority to modify its existing permit.
Mingo Logan Coal Company was granted a 404 permit from the Corps to expand its mountain-top coal mine in West Virginia. Four years after the permit was issued EPA vetoed two of the three disposal sites that the Corps had approved.
Mingo filed suit and the district court sided with the coal company but on April 23, 2013, the D.C. Circuit unanimously reversed. The DC Circuit court held that EPA has the power to withdraw disposal sites from such a permit “whenever” it determines that the discharge of material into such a site would have “an unacceptable adverse effect” on the environment. AGC believes this broad discretionary authority could have significant negative impacts on construction activities and in particular increasing investment to meet the Nation’s growing infrastructure needs. The amicus brief points out that, “Raising new obstacles to public infrastructure investment, as EPA has done by claiming the authority to nullify Section 404 permits years after they have been properly issued, will have the opposite effect, multiplying the difficulty of achieving the necessary spending level.”
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