"It's not fair" is not one of the canons of statutory construction.

by Kirsten E. Small

The Fourth Circuit issued one published opinion yesterday: West Va. Highlands Conservancy v. Huffman, No. 09-1474.

Coal miners in West Virginia (well, everywhere really) are required by the Clean Water Act to control acid mine drainage. When they fail to do so, the West Virginia Department of Environmental Protection forfeits the mine owner's performance bond and starts remediating the drainage itself.

Or at least, that's the theory. In actuality, WVDEP was allowing acid mine drainage to continue at 18 bond forfeiture sites. The West Virginia Highlands Conservancy sued, claiming that WVDEP was required to obtain a permit for such discharges. The district court agreed based on the very broad language of the CWA, which covers "any addition of any pollutant ... from any point source" by "any person" (defined to include states and municipalities).

The district court held that WVDEP was required to obtain a permit under the plain statutory language. On appeal, WVDEP resorted to playground rhetoric, arguing that the CWA shouldn't apply to it because: (1) it's a state agency ("the rules don't apply to me"); (2) it didn't cause the discharges in the first place ("he did it"); and (3) application of the CWA to it would produce "absurd" results ("it's not fair").

The Fourth Circuit rejected these "policy" arguments and affirmed.