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May 30, 2013
Corps' 'hard look' satisfies court

A coalition of environmental groups failed to persuade a district court that the Army Corps of Engineers (Corps) did not take the requisite “hard look” at the impact of a mountaintop mining project on the quality of streams in Logan County, West Virginia.  The groups then appealed to the U.S. Court of Appeals for the 4th Circuit with the same result (Ohio Valley Environmental Coalition, et al. v. U.S. Army Corps of Engineers). 

The two opinions provide insight into what a federal agency must undertake to meet its obligations under the National Environmental Policy Act (NEPA).  Specifically, the rulings affirm that the NEPA process does not dictate a specific result.  Rather, the agency must meet certain procedural standards in its investigation of the environmental effects of a project and determination of mitigation measures.  If those standards are met, the agency–whether it supports a project, opposes it, or stands somewhere in between–is in compliance with NEPA.

Concerns addressed

The case involves an application by Highland Mining Company for a dredge-and-fill permit, which the Corps is authorized to issue under Section 404 of the Clean Water Act.  The company had already obtained mining and pollutant discharge permits from the West Virginia Department of Environmental Protection (WVDEP).  The Section 404 permit would authorize the placement of rock overburden from the mining project into an adjacent valley that contains a stream called Reylas Fork, which flows into the Dingess Run watershed.

Initially, the EPA voiced concerns about the direct and cumulative impacts of actions authorized by the Section 404 permit the Corps was planning to issue to Highland.  In response to EPA’s comments, Highland conferred with the EPA and the Corps and modified its application by including best management practices and monitoring in the proposed project. The EPA said the modified application alleviated its concerns and had no further objections to the permit.  The Corps issued the permit to Highland in March 2011.

NEPA review

The focus of the case brought by the environmental coalition was that the Corps based its decision on a NEPA environmental assessment (EA) rather than on a far more complex environmental impact statement (EIS).  All federal agencies must conduct NEPA reviews for federally authorized projects that may significantly impact the environment.  If an agency conducts an EA and determines that there will be no significant impact, an EIS is not required.  The groups charged that the Corps had failed to take the “hard look” at the environmental impacts of the project and thus "materially misapprehended" the baseline conditions in the watershed.  The term “hard look” has been used by the courts to describe the federal obligation under NEPA. 

In its review of the district court’s action and the coalition’s appeal, the 4th Circuit concentrated on the measures taken by the Corps to meet its NEPA requirements.  Specifically, the 4th Circuit progressed step-by-step through the elements of the Corps’ combined decision document, which included the NEPA finding of no significant impact (FONSI).  The court found first that the Corps had “exhaustively reviewed” the relevant data on the streams near the proposed mine and concluded that they were of good quality.  The Corps took the same detailed approach to the Dingess Run watershed and again concluded that water quality was good.  “These observations and assessments do not support the Environmental Coalition’s claim that the Corps ‘misapprehended’ existing conditions,” said the 4th Circuit.

Impacts also assessed

The coalition also challenged the Corps’ finding that the mining project would have no cumulative impact of significance on the watershed.  Much of the coalition’s argument centered on the potential for stream impairment resulting from increased conductivity and selenium discharges from the project.  Both the district court and the 4th Circuit disagreed. 

The 4th Circuit stated:
“Contrary to the Environmental Coalition’s contention that the Corps failed to take a hard look at conductivity and stream impairment, the record amply shows that the Corps grappled with the issue extensively, rationally finding that (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit and (2) the compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.

“The Corps’ predictive judgment in this case was based on facts and recommendations, adduced during a lengthy consultation between the Corps, Highland Mining, the EPA, and the WVDEP, and we conclude that this process satisfies NEPA’s procedural requirement to take a ‘hard look’,” concluded the 4th Circuit.

Click here for the 4th Circuit’s opinion in Ohio Valley Environmental Coalition, et al. v. U.S. Army Corps of Engineers.

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