Energy Law Update: Southern District Court Decision Toughens Surface Mining Permit Requirements
Nationwide permits (NWP 21) for discharge of dredged and fill material associated with mountain top removal surfacemining will become more difficult to obtain after a March 31, 2009 decision of the United States District Court for the Southern District of West Virginia granting summary judgment to several environmental groups against the U.S. Army Corps of Engineers (Corps) and their issuance of nationwide permits for the discharge of dredged and fill material associated with coal mining activities, including mountaintop mining.
Prior to commencing dredge and fill operations as part of a coal mining operation, operators must obtain a Section 404 permit from the Corps. Section 404 refers to the specific section of the Clean Water Act (CWA) which gives the Corps the jurisdiction to authorize activities in waters of the United States that have "minimal environmental impacts both individually and cumulatively." As part of this authority, the Corps has drafted a series of permits which can apply across the nation and whose terms and conditions have been found by the Corps to result in minimal environmental impacts. NWP 21 specifically relates to the nationwide permit issued by the Corps for dredge and fill activities.
The Court examined whether the Corps' permit adequately addressed impacts resulting from NWP 21 permitted activities and specifically reviewed the Corps' findings that the permit would have insignificant environmental cumulative impacts, and that impacts would be limited by mitigation performed by the permittee. The Court also examined the Corps' action in light of the National Environmental Policy Act (NEPA) which requires the Corps to take a "hard look" at environmental impacts of a proposed project and prepare an environmental impact statement before issuing a nationwide permit unless only "insignificant environmental impacts" will result. The Court found the Corps' review to be "arbitrary and capricious" and "unsupported by the administrative record" because (1) the Corps did not consider ongoing impacts of past actions; (2) there was no rational explanation for the Corps' reliance on the success of a mitigation process to minimize cumulative impacts; and (3) the Corps provided no evidence that the mitigation process would be successful or adequately enforced.
The Court declared that the decision was only applicable in the Southern District of West Virginia. If the decision is not appealed or any appeal is unsuccessful, the Corps must re-evaluate its program and decide whether to undertake further studies to address the concerns in the Court's decision regarding NWP 21 permits. Certainly if the decision stands, and the Corps is forced to re-examine the NWP 21, future nationwide permitting for dredge and fill activities will be substantially delayed into the foreseeable future.
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