An appeals court has ruled in favor of environmental groups that argued the streamlined permit the government used to permit mountaintop removal mines wasn’t protective of the environment.
The decision was issued today by the U.S. Court of Appeals for the Sixth Circuit. It finds that the U.S. Army Corps’ issuance of the streamlined “Nationwide 21” permit is in violation of the Clean Water Act and the National Environmental Policy Act.
The groups filing suit include the Kentucky Riverkeeper, the Kentucky Waterways Alliance and Kentuckians for the Commonwealth. Kentucky Waterways Alliance Executive Director Judy Petersen says most of the streams in the commonwealth are impaired, and one of the main culprits is coal mining.
“[The Kentucky Division of Water] estimates that only one percent of Eastern Kentucky streams fully support fish and other aquatic life. And another six percent might support some aquatic life and fish,” she said. “They recognize that one of the main impacts is from mining.”
The Army Corps of Engineers is responsible for issuing permits for any mining activities where material is discharged into U.S. waters. When a company wants a permit for a mountaintop removal mine, the Army Corps issues a permit for a valley fill—which is where the rock and dirt from the top of the mountain are used to fill in a nearby valley.
The Army Corps is required to complete in depth environmental assessments to make sure the permit won’t have too damaging an effect on the environment. Historically, mining companies have had to apply for individual permits, which undergo a lot of scrutiny. But in recent years, the corps has created the streamlined Nationwide 21 permit. That permit was meant for mines that have only a minimal environmental impact, but environmental groups argued it was used inappropriately and was essentially a “rubber stamp” for mines.
And the appeals court agrees with the environmental groups. Here’s a summary of the decision, written by Judge Deborah Cook:
Though we generally give greatest deference to an agency’s “complex scientific determination[s] within its area of special expertise,” we may not excuse an agency’s failure to follow the procedures required by duly promulgated regulations. During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper’s demands. This policy argument misses the point. After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given.
We hereby invalidate permit 21 as arbitrary and capricious, but stay this ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.
The environmental groups originally filed the suit in federal court eight years ago. The court eventually declared the case moot because the Nationwide 21 permit expired last year. Even so, about 70 surface coal mines are still using the general permit because the Corps extended the permits through March 18, 2013, and also gives some projects an additional five years to finish mining under the permit. The environmental groups filed the appeal, arguing that the permit was still essentially in operation.
Petersen says the groups are thrilled with the decision. Though the Army Corps has 60 days to review the decision and the effects on existing projects, Petersen says it’s hopefully a positive step toward tightening the environmental review of surface coal mines.
“If there are new permits they should be, we hope, individual permits which have more public notice, more public review and require additional consideration by the Corps of Engineers and by everybody involved,” she said.