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April 26, 2013
Mining comes up empty in two rulings

Companies engaged in surface mining should review two opinions recently issued by U.S. appeals courts.  In both cases, the courts affirm the long reach of laws and regulations restricting the discharge of mining waste into water bodies. 

Mingo Logan Coal Company v. EPA

This case concerns Mingo Logan Coal Company’s Spruce No. 1 Mine in Logan County, West Virginia.  As one of the largest surface mining operations ever authorized in Appalachia, the mine has become a focal point for disputes between advocates and opponents of mountaintop mining.  The case concerns a Clean Water Act (CWA) Section 404 mining permit issued to Mingo by the U.S. Army Corps of Engineers in 2007.  The permit allowed the company to discharge excess spoil into three mountain streams and their tributaries. 

CWA Section 404 also gives the U.S. Environmental Protection Agency (EPA) substantial authority to veto the use of specific sites for disposal.  At the time the permit was issued, the EPA did not exercise its veto power.  However, in 2009, the EPA reversed itself and took regulatory action to prohibit mining discharges into two of the three streams.  Mingo sued in a federal district court and won.  The district court agreed with Mingo that EPA’s authority to withdraw a site specification must be exercised before a permit is issued.

The EPA appealed to the U.S. Court of Appeals for the D.C. Circuit, which saw the situation differently.  According to the D.C. Circuit, the crux of the case is whether the CWA specifically prohibits the EPA from exercising its veto authority after the Corps issues a permit.   Citing statutory language, the D.C. Circuit states:  “Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’s specification, but instead expressly empowers him to prohibit, restrict, or withdraw the specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will result.” The D.C. Circuit notes that the EPA has consistently maintained this interpretation for over 30 years.  Moreover, the Corps joined the EPA in the litigation, making clear, according to the D.C. Circuit, that it agrees with EPA’s interpretation.

Click here to read the D.C. Circuit’s opinion in Mingo Logan Coal Company v. EPA .

Kentucky Riverkeeper et al. v. Robert A. Rowlette, Jr., et al.

In this case, the quality of an environmental assessment (EA) completed by the Corps before issuance of a nationwide permit (NWP) authorizing surface mining discharges was faulted by the U.S. Court of Appeals for the 6th Circuit.  As a result, the court invalidated the NWP.

In 2007, the Corps issued NWP 21, which authorized surface coal-mining operations to discharge dredged and fill material into waters of the United States, and NWP 50, which authorized underground coal-mining operations to do the same.  The case focuses on NWP 21.  Also called general permits, NWPs cover activities that are similar, that will have minimal adverse environmental impact, and that will cause only minimal cumulative adverse effect on the environment.  Operators who qualify for coverage under NWPs do not need to engage in the more burdensome process of obtaining individual permits.

Following issuance of NWP 21, Kentucky Riverkeeper and other groups sued the Corps in a district court, alleging that the EAs completed by the Corps for the NWPs failed to consider the present effect of past authorizations and also did not properly explain how compensatory mitigation discussed in the permit would ensure minimal cumulative impacts, as the Corps claimed.  The district court found that the Corps adequately reviewed the present effects of past NWP authorizations and properly relied on compensatory mitigation to ensure minimal cumulative impacts.  The environmental groups appealed.

In its opinion, the 6th Circuit notes that while an EA requires a less comprehensive environmental assessment than an environmental impact statement (EIS), regulations issued under the National Environmental Policy Act (NEPA) still require an assessment of cumulative impact—that is, the proposed mining action when added to other past, present, and reasonably foreseeable future actions.  The Corps claimed it met this requirement by including in the EA portions of various national surveys regarding available aquatic natural resources throughout the United States. 

“But the assessment’s discussion of these surveys makes no mention of the impact of prior actions,” states the 6th Circuit.  In fact, the court points to a section of the EA in which the Corps “expressly disclaims consideration of past impacts.”

The Corps also argued that when considering specific projects, its division and district engineers conduct more detailed assessments of past actions.  But the court countered that these assessments occur after authorization of the NWP and “therefore presume that the assessment satisfied the NEPA regulations.”  The 6th Circuit concluded that the Corps “short-circuited the ‘cumulative impact’ analysis by confining its review to an estimate of future impacts.”

The 6th Circuit also agreed with the plaintiff’s claim that the Corps did not substantiate its assertion in the EA that compensatory mitigation would ensure cumulatively minimal adverse effects.  The court agreed that the Corps could rely “in part on the availability of post-issuance procedures” to ensure that authorized projects will have only minimal impacts.  But the court agreed with the plaintiffs that the Corps failed to provide any explanation or documentation to support the presumption that compensatory mitigation will ensure minimal cumulative effects. 

The 6th Circuit stayed the effect of its invalidation of NWP 21 for 60 days to allow the parties and the district court to assess the ramifications of the ruling on existing projects and potential remedies.

Click here to read the 6th Circuit’s opinion in Kentucky Riverkeeper et al. v. Robert A. Rowlette, Jr., et al.

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