A ruling by the D.C. Circuit supporting the U.S. Environmental Protection Agency's revocation of an Arch Coal mining unit's Clean Water Act permit demonstrates developers’ need to document permit-related expenses as early as possible if they intend to try to get such revocations overturned by arguing the EPA failed to consider costs.

A divided appeals court panel ruled the EPA reasonably explained its decision to revoke Mingo Logan Coal Co.'s permit, and rejected the company's argument that the agency failed to engage in "reasoned decision making" by ignoring costs.

The bigger, unresolved question is whether the EPA must consider costs in a Section 404 permit revocation challenge. But Brendan K. Collins, a partner at Ballard Spahr LLP, said there are ways attorneys and permittees can be prepared when the EPA challenges permits.

"The best thing to do is be very proactive throughout the permitting process in ensuring that the relevant considerations are brought to light," Collins said. "It seems to me the judges went out of their way to limit the scope of the decision not just to Mingo's coal permit but also to say, 'We're not even saying that cost and investments by a permittee in reliance on the permit aren't factors that

EPA should consider.'"

The important question is who has to raise and address the issue of cost, according to Collins, who pointed to the majority's view that it's always on the permittee to raise issues that they believe are important and to put into the administrative records the facts that support those arguments.