By John McFerrin

The United States Court of Appeals for the Fourth Circuit has refused to stay an order by the United States District Court for the Southern District of West Virginia.  The order required the United States Environmental Protection Agency to approve or disapprove West Virginia’s list of streams that had to be cleaned up.

The legal/bureaucratic rigmarole

            The way the system works, states have to submit lists of impaired streams to EPA and EPA has to either approve or disapprove them.  West Virginia has submitted clean-up plans (TMDLs) for some streams, just not the ones that are biologically impaired by high conductivity.  EPA is required to either approve or disapprove the submissions or–in the case of the biologically impaired streams—the non-submissions of cleanup plans.

In February, the District Court Judge ordered EPA approve or disapprove the plans within thirty days.   His decision so sharply criticized lists that do not include streams biologically impaired by high conductivity that it is apparent that the Judge thinks that disapproval is the right answer. For a little more detail on this decision and how we got here, see the March, 2017, issue of The Highlands Voice, available at https://www.wvhighlands.org/highlands-voice-mag/.

Once disapproval happens, the EPA will have a duty to step in and write the necessary clean-up plans.  If it does not do so, there will be more litigation seeking to require it to do so.

EPA disagrees with the District Court and has appealed to the United States Court of Appeals for the Fourth Circuit.  It also asked for a stay of the District Court’s decision.  Had it been granted, the stay would have meant that EPA would not have to do anything until after the appeal was heard and decided.  Instead, the Court of Appeals denied the stay.

The Heart of the Matter

Under the federal Clean Water Act, West Virginia has a duty to identify streams that are polluted and figuring out how to clean them up.  While West Virginia didn’t exactly spring into action when the Act was passed in 1972, it got started in the mid-1990s and has been identifying streams which were polluted along with plans to clean them up.

While West Virginia had identified several streams, it had not included streams that were impaired by what is called “ionic pollution” or high conductivity.  West Virginia has between two hundred and six hundred such streams, depending upon who is doing the estimating.

Conductivity is a measure of the ability of water to pass an electrical current.  Totally pure water is a poor conductor of electricity.  The more substances that are in the water, the greater the conductivity.  Conductivity is useful as a general measure of stream water quality. Research has shown that high conductivity can make a stream inhospitable to aquatic life, making the stream biologically impaired.

Since 2012, West Virginia has not been considering conductivity when it prepares lists of impaired streams and plans for cleaning them up.  It did this largely because in 2012 the West Virginia Legislature directed it to not do any more lists until it had developed a new method of determining whether a stream was biologically impaired.  Such a direction would be beneficial to the coal industry.  The West Virginia Department of Environmental Protection has been “working on” developing a new method since then but has not made much progress.  It has offered no estimate of when it might finish.

The plaintiffs (West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, West Virginia Rivers Coalition, and Sierra Club) contended that submitting lists that do not include streams impaired by high conductivity is the same as submitting no lists or cleanup plans at all.  EPA has a duty to approve or disapprove the lists West Virginia has submitted. Since the lists submitted do not address conductivity, it could not approve them.  If it does not approve West Virginia’s lists, EPA must step in and do Wests Virginia’s job or preparing lists of impaired streams and cleanup plans.

The United States District Court agreed with the plaintiffs.  It scolded the West Virginia Depart of Environmental Protection because it did not do its duty to figure out what streams are messed up, etc.  The United Sates Environmental Protection Agency is also in trouble because it stood by and allowed West Virginia Department of Environmental Protection to shirk its duty.

What the Stay Decision Means

In the short term the refusal means that the process to getting streams cleaned up continues to move forward.  The whole process can be frustratingly long but at least we are not stopping to wait while the Fourth Circuit considers the matter.  EPA will have to go ahead with its approval-disapproval decision and things will proceed from there.

The decision on the stay is also a hint on how the Fourth Circuit might rule.  A court would only stay a decision if it thought there was a reasonably good chance that decision was wrong and would later be overturned.  That the Fourth Circuit refused to issue the stay gives some indication of how it will rule.

How EPA Responded

Under the District Court’s decision, EPA had a duty to either approve or disapprove West Virginia’s list of impaired streams.  From the Judge’s decision, it was clear what he thought the right answer was.  The decision talked extensively about the importance of conductivity and how any list should include streams where high conductivity indicates they are impaired.

EPA didn’t take the hint.  Instead of recognizing that West Virginia’s lists were inadequate and disapproving them, it “conditionally approved” the lists.  This was based upon West Virginia’s promise to—sometime in the next nine years—compile an adequate list and set of cleanup plans.  This decision allows EPA to avoid its duty to step in and do what the law requires that West Virginia do.  It allows West Virginia to drag along as it has for the past decades, never completely doing its duty.

This was not the response from EPA the Plaintiffs expected.  They assumed EPA would follow the letter and spirit of the Court’s decision, disapprove the lists, and step forward to do the job itself.  Now that EPA has refused to step forward, the Plaintiffs will be considering their next steps.

Stay tuned.