Fourth Circuit Rules for Industry in Mountaintop Mining Lawsuit

The United States Court of Appeals for the Fourth Circuit has overturned Judge Chambers' rulings of March 23 and June 16, 2007 that the US Army Corps of Engineers (the Corps) had improperly issued permits for stream fills at several mountaintop removal sites in West Virginia. The decision had been long awaited, as there are several other lawsuits challenging mountaintop removal permits that will be affected by this decision.

The Court's opinion provides a good summary of the programs that govern mountaintop mining. The National Environmental Policy Act (NEPA), the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA) are implicated, and are administered and interpreted by the Corps, the US EPA, and the WV Department of Environmental Protection, with sometimes overlapping jurisdictions. It can be a little confusing, and the Court's exegesis of the statutory and regulatory maze is pretty good.

The following summary assumes some basic understanding of mountaintop mining and permitting requirements.

The Court made several favorable rulings for the Corps and the mining companies who received permits from the Corps. First, in issuing the 404 permit, the Corps was correct to consider only the effect of filling the jurisdictional streams in the course of constructing the valley fill, and was not required to look at the environmental impact of the entire valley fill. NEPA requires the Corps to take a "hard look" at the environmental aspects of its actions, which may at times extend beyond the geographical limits of its permitted fill area, but that was not required in this case. Consideration of the larger effects of the valley fill is the province of the WVDEP, as the delegated agency with responsibility for implementing SMCRA.

Second, the Court determined that the Corps had not adequately supported its decision to issue a "mitigated FONSI" or a Finding of No Significant Impact under NEPA, with regard to the proposed filling of streams that are covered by the valley fills. The Court reviewed the decision using an abuse of discretion analysis under the Administrative Procedures Act. The District Court had rejected the Corps' analysis of the effect of the permitted fills on the structure and function of the buried streams; the sufficiency of mitigation measures, and the adequacy of the assessment of the cumulative impact of all the fills. The 4th Circuit engaged in a lengthy discussion of what constitutes an acceptable analysis of "structure" and "function" and ruled the Corps had not acted arbitrarily or capriciously. Mitigation (replacement of the buried streams by improvements to, or creation of, streams and wetlands in other locations) was found to be satisfactory, which allowed the Corps and the Court to conclude that there would be no net adverse effect on water resources. This counterbalancing of the stream burial with the creation or rehabilitation of other water resources was the justification for the mitigated FONSI. Finally, the 4th Circuit ruled that the Corps had fairly considered the overall effect of all the stream fill activities in conducting its cumulative impact analysis.

The Court also addressed the perpetual conflict between Sections 404 and 402 of the CWA in the mining context. Sitting at the base of any valley fill is a sediment pond, and to discharge from that pond requires a CWA 402 NPDES permit. Sometimes there is a short length of stream that runs from the toe of the valley fill to that sedimentation pond, and the District Court had ruled that a NPDES permit was required for the discharge from the toe of the fill, because that stretch is a water of the United States, and no discharge can be made to it without a permit. This has been a matter of contention for years, with case law, changing rules and contradictory memoranda of understanding between EPA and the Corps to throw into the mix. The Corps contended that those stretches of stream are part of a wastewater treatment system, and therefore no permit was needed to discharge into it. The 4th Circuit agreed that the Corps' interpretation of the CWA and its regulations was not unreasonable and was entitled to deference.

Judge Michael concurred in part and dissented in part. He felt that the Corps had not conducted a proper functional analysis of the streams that would be buried, and the permits should be remanded to the Corps to carry out that analysis. He believed that the use of EPA's Rapid Bioassessment Protocol and the WVDEP's Stream Condition Index did not necessarily gauge the health and qualities of the streams, and therefore it would be impossible to say that the mitigation measures approved by the Corps would be sufficient to fully replace the streams that were being buried.

I can't imagine that the Ohio Valley Environmental Coalition, which was the plaintiff in the lawsuit, will not appeal this decision to the US Supreme Court. It will be interesting to see if the Supreme Court accepts the petition. For a take on what some people have said in response to the decision, here's an article by Ken Ward.