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Energy and Environment Monitor

Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit Shield

February 26, 2020

By: Robert G. McLusky and Chris M. Hunter

          The plaintiffs in an important Clean Water Act (“CWA”) case filed their reply brief with the Fourth Circuit on January 28, 2020.  We have previously written about the ruling in Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, here and here.  The case is now on appeal before the Fourth Circuit from the District Court’s ruling, which gave broad effect to the Clean Water Act’s “permit shield” and held that it precluded SAMS’ citizen suit claims under both the CWA and the Surface Mining Control and Reclamation Act (“SMCRA”).  The District Court based its dismissal of the SMCRA claims on §702 of SMCRA, which provides that nothing in SMCRA shall be construed as “superseding, amending, modifying, or repealing…” the CWA.  Since SAMS was precluded from suing for violations of Virginia’s water quality standards under the CWA by the CWA’s “permit shield” provision, the District Court reasoned that allowing those same claims under SMCRA would violate §702 of SMCRA. 


            On appeal, SAMS argues that the District Court erred in ruling that citizens cannot enforce Virginia State SMCRA rules requiring compliance CWA-based water quality standards.  SAMS’ initial brief argued (1) the CWA allows states to adopt more stringent regulations than required by the federal Act and that Virginia’s SMCRA rule requiring compliance with water quality standards was an example of a state opting for a more stringent regulation; and (2)  SMCR §702 as applied by the District Court effectively  overrode the water quality protection provisions of SMCRA, which SAMS contends are essential to the program.  Red River countered by relying on Sierra Club v. ICG Hazard, LLC and In re Surface Mining Regulation, which stand for the proposition that, where there is regulatory overlap, SMCRA cannot alter the CWA. 


            In its reply brief, SAMS first argues that the CWA and SMCRA must be harmonized, if possible.  According to SAMS, the permit shield makes sense in the context of the CWA because the NPDES permit is the primary enforcement mechanism.  The permit shield relieves the enforcement authority of proving that a particular discharge has actually caused a degradation of water quality, just as compliance with the terms of an NPDES permit relieves a permittee from proving the opposite.  SAMS contends that SMCRA differs in that it makes performance standards directly enforceable and may require proof of causation.  SAMS argues that the District Court’s interpretation of CWA §402(k) actually expands the CWA’s permit shield in such a way as to interfere with SMCRA’s unique enforcement scheme and, by extension, Congress’ approach to regulating mine pollution—especially from inactive mines, which SAMS claims the NPDES permitting scheme does not adequately address.  This logic, though, would allow essentially invalidate any exemptions provided to NPDES permittees by the CWA simply by cross-referencing water quality standards.  There is simply no way to harmonize a view of the law that allows citizens or enforcement authorities to run an end around the CWA’s permit shield with SMCRA §702’s prohibition on modifying or superseding anything in the CWA.         


            Next, SAMS argues that §702 of SMCRA is simply a standard savings clause, not itself a substantive provision of the law, and that general principles of statutory construction counsel that savings clauses should be narrowly construed so as not to nullify substantive provisions of a statute.  This argument would effectively read §702 out of SMCRA.


            Finally, SAMS argued that In re Surface Min. Reg. Litig., 627 F.2d 1346 (D.C. Cir. 1980) stands for the proposition that consistent effluent standards be applied nationwide    There, the D.C. Circuit Court of Appeals stated that, to the extent EPA affords an exemption to surface mining operations, OSM must afford the same exemption to fulfill §702’s mandate.  In its brief, SAMS did not address the D.C. Circuit Court’s rejections of OSM’s attempt to propose separate effluent limitations under SMCRA because of the possibility that those limits could conflict with the CWA’s effluent limits.  Id at 1368.  Finally, SAMS argued that the Sixth Circuit’s opinion in Sierra Club v. ICG Hazard—a case in which the district court rejected similar attempts to enforce water quality standards under SMCRA where such claims were not authorized by the CWA—was wrongly decided.


            Now that briefing has been completed, the Court will likely schedule oral argument.  The next available date for oral argument during the 2019-20 term is May 5-8, 2020. 


A copy of the brief can be found here.



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