For the fifth time, the United States Court of Appeals for the Fourth Circuit has turned back a challenge by anti-mining groups to the permits needed to conduct surface mining in Central Appalachia1. See Opinion here. On May 15, 2013, a unanimous three-judge panel affirmed an earlier determination by a West Virginia district court that the Corps of Engineers complied with both the Clean Water Act and NEPA in issuing a §404 “fill” permit to Highland Mining for a surface mine in southern West Virginia. Prior discussions of the District Court proceeding appear at “Court Denies Motion to Supplement Complaint With Hendryx Studies”; “Court Rebuffs Challenge to Valley Fill Permit”; and “Federal Courts Deny Environmental Groups’ Requests to Suspend Valley Fill Permit Pending Appeal.”
On appeal, the Sierra Club argued that the Corps had “misapprehended” the baseline water quality in waters draining the fill area at issue and, consequently, could not accurately assess the impact of the fill discharges. Additionally, it argued that the Corps had irrationally rejected claims that conductivity discharged by the permitted operation would cause cumulatively significant adverse effects to aquatic life. In both instances, the Court determined that the Corps understood the baseline and adequately considered potential cumulative impacts. As noted by the Court, “[c]ontrary 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.” Ultimately, the Court noted that once it determined that the Corps had taken a “hard look” at the environmental consequences, the Appellants’ position was “reduced to no more than a substantive disagreement with the Corps,” and that the review of the courts is limited and may not be used to second-guess substantive decisions committed to agency discretion.
In a concurring opinion, Judge J. Harvie Wilkinson expressed concern that the Corps had approved a permit that would increase conductivity levels in a stream already on the State’s list of biologically “impaired” waters. He observed the EPA had expressed “significant concerns” about compliance with water quality standards, but ultimately concluded that the courts are a poor substitute for candid review by federal agencies. He noted that if the Court had seized solely on EPA’s expression of concerns, “I fear we would stifle the very agency candor and applicant responsiveness that is essential to the proper functioning of the administrative process and, ultimately, to the goal of natural resource protection.”
Highland Mining was represented by Jackson Kelly.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.
West Virginia Coal Ass’n v. Bragg, 248 F.3d 275 (4th Cir. 2001) (11th amendment prohibits suit against State to enforce federally-approved State mining program);
Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) (excess spoil fills considered “fill material” with scope of Corps of Engineers CWA §404 authority);
Ohio Valley Envt’l Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005) (affirming condition in then-existing NWP 21 which allowed Corps to verify on case-by-case basis that NWP authorization would result in no more than minimal adverse impacts); and
Ohio Valley Envt’l Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (affirming Corps’ treatment of in-stream sediment ponds as “waste treatment systems” excluded from “waters of U.S.” and affirming Corps’ review and approval of mitigation regarding four individual CWA §404 permits).