The 6th Circuit Court of Appeals has affirmed a recent decision by the U.S. District Court for the Western District of Kentucky to uphold the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Leeco, Inc., a subsidiary of James River Coal Company.
In July 2012, the Corps issued a § 404 “dredge and fill” permit to Leeco for its Stacy Branch surface mine in Perry County, Kentucky. The Kentuckians for the Commonwealth and Sierra Club subsequently filed suit, claiming that the Corps had violated the Clean Water Act and NEPA by not considering a series of studies linking mining to adverse health impacts. The anti-mining groups also claimed that the compensatory mitigation plan approved by the Corps violated the Clean Water Act.
In August 2013, the district court issued an order rejecting the groups’ claims. Shortly thereafter, however, the district court issued an injunction prohibiting Leeco from using its § 404 permit while the anti-mining groups appealed to the 6th Circuit.
Oral argument was held before the 6th Circuit on February 11, 2014, and on March 7, 2014, the Court issued an opinion affirming the district court’s decision.
Regarding public health, the 6th Circuit held that the Corps’ decision not to consider studies associating general surface mining to health issues did not violate NEPA. Specifically, the Corps had determined that the scope of its NEPA review was limited to effects from the specific § 404 dredge and fill discharges that it was authorizing. The health studies, on the other hand, related to surface mining as a whole. The Court held that the Corps had “reasonably limited the scope of its review to the effects proximately caused by the specific activities that were authorized by the permit.” According to the Court, the Corps was not required to expand the scope of its analysis beyond the effects of dredging and filling to the effects from the entire mining operation. The entire mining operation, as the Court pointed out, is regulated by the Kentucky Department of Natural Resources under the Surface Mining Control and Reclamation Act (SMCRA). The Court thus concluded that “[t]o the extent that there is scientific evidence establishing that surface mining is generally bad for the public health, the plaintiffs should raise those concerns with those agencies which Congress has placed the primary responsibility of regulating surface mining, either the federal Office of Surface Mining or the federally approved state regulators.”
Beyond that, the Court found that the Corps did not ignore the public health effects related to the fill discharges authorized by the permit. The Court noted that the Corps had considered the potential impact of the permit on the local water supply and local air quality and concluded that those effects would not be significant.
Regarding compensatory mitigation, the Court held that the Corps did not act arbitrarily and capriciously in determining that the mitigation plan met all regulatory requirements. The Court discussed “the various interrelated factors and possible assessment metrics that could be used in a mitigation plan,” and concluded that assessment of particular mitigation and choice of specific performance standards “requires the exercise of complex scientific judgment and deference to the Corps’ expertise is appropriate.” Thus, the Court held that the Corps did not abuse its discretion in approving a mitigation plan that was “rationally designed to ensure that there is not a net loss of aquatic function in the mine location’s watershed.”