A federal court March 23 rebuked the U.S. Environmental Protection Agency (EPA) and agreed with the American Road & Transportation Builders Association (ARTBA) and its allies, saying the agency overstepped its authority by revoking a valid wetlands permit from a West Virginia mining operation.
ARTBA joined with 12 other industry associations in filing a brief last year in Mingo Logan v. EPA urging the court to block EPA's unprecedented decision to revoke a valid wetlands permit. While the permit in question was for a mining operation, ARTBA highlighted the potential negative effects such action could have on any industry—including transportation construction—that relies on federal wetlands permits.
Specifically, ARTBA warned, "[t]housands of permit holders . . . have been relying on the Army Corps of Engineers' [wetlands] regulations and predictable processes for decades. If EPA is allowed to change the game, to interfere in the operation of a longstanding permitting system, it will send shockwaves across the country, adversely impacting amici and all the industry participants that they represent."
In her ruling, Judge Amy Berman Jackson, who was appointed by President Obama, called EPA's actions both "illogical" and "impractical" and accused the agency of "magical thinking."
If EPA's action had been allowed to stand, ARTBA said, any project relying on wetland permits would be in danger of losing its permits not because planners had done anything wrong, but simply because EPA changed its mind.
ARTBA and its members have now chalked up three major legal victories in the last 30 days. The Mingo Logan decision comes on the heels of two major ARTBA Supreme Court decisions in the cases of PPL Montana LLC v. Montana and Sackett v. EPA. In both, the Court reined in EPA attempts to increase the reach of Clean Water Act regulations, removing roadblocks that could have needlessly delayed transportation improvements.
In the last 20 years, ARTBA's legal efforts have allowed nearly $50 billion in approved—yet challenged—state, regional and local transportation projects and plans to move forward.
The full text of the association's brief in the Mingo Logan case is available at www.artba.org under the "advocacy" section and by clicking on "legal."
