In October 2010, WVDEP sued USEPA in the Southern District of West Virginia, arguing that USEPA had adopted illegal rules in contravention of both the Administrative Procedures Act and of the Clean Water Act for the purpose of reviewing and delaying the issuance of §404 “fill” permits by the Corps of Engineers and §402 NPDES permits by WVDEP. Although there are some differences, the case contains a number of counts which are substantially like those advanced by the National Mining Association in a case filed against EPA in Washington in July 2010. As a consequence, USEPA moved to transfer WVDEP’s case to the same court in Washington which the NMA lawsuit is pending.
By order dated January 31, 2011, Judge John T. Copenhaver granted USEPA’s motion, finding that there were substantial similarities between the WVDEP and NMA complaints, and that issues of judicial economy and the need for uniform certainty from a single court outweighed competing interests in allowing plaintiffs to choose the court in which they intend to litigate.
The Kentucky Coal Association filed a similar action against USEPA in federal court in Kentucky. That action has been stayed by a federal judge in Kentucky pending a resolution of USEPA’s motion to dismiss NMA’s lawsuit in Washington. The court in Washington, though, recently denied USEPA’s motion to dismiss NMA’s complaint. See “D.C. District Court Denies NMA Request for Preliminary Injunction Against EPA, But Says NMA is Likely To Win on Its Legal Theories--Eventually,” JK Env’t. Rptr., McLusky, R. (Jan. 19, 2011).
As a result, the court in Kentucky may soon decide whether KCA’s challenge should also be transferred to Washington.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.