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Media Alerts - Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers -- Sixth Circuit
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June 5, 2014
  Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers -- Sixth Circuit
Headline: Sixth Circuit denies relief to challengers of mining permit, finding that the U.S. Army Corps of Engineers' limited-in-scope environmental analysis and approval of a mitigation plan complied with the Clean Water Act and National Environmental Policy Act.

Areas of Law: Environmental Law; Coal Mining; Clean Water Act; Surface Mining Control and Reclamation Act of 1977; National Environmental Policy Act

Issue Presented: Under the Clean Water Act and the National Environmental Policy Act, what level of environmental analysis is required when issuing a permit that relates to a small but necessary part of a mining operation?

Brief Summary: Plaintiff environmental groups sued after the U.S. Army Corps of Engineers granted a mining company a permit to discharge dredged or fill materials into navigable waters. Plaintiffs alleged that the Army Corps violated federal mandates by issuing a permit that would negatively affect water quality, by failing to consider adverse effects on human health and welfare, and by failing to issue an environmental-impact statement. The district court granted summary judgment to the Army Corps, dismissing the lawsuit in its entirety. The Sixth Circuit affirmed, holding that the Army Corps did not abuse its discretion by (1) limiting the scope of its environmental analysis to only health effects closely related to the discharge of dredged or fill material into navigable waters and (2) approving a mitigation plan that was rationally designed to maintain the water integrity near the mine.

Extended Summary: The Kentucky Division of Mine Permits granted a mining company a permit for a surface coal-mining operation in Kentucky. In 2007, the company applied to the Army Corps for a secondary §404 permit related only to the filling of jurisdictional waters. After the company addressed various concerns and implemented strategies outlined by the Environmental Protection Agency, the Army Corps issued an environmental assessment finding "no significant impact" and issued the §404 permit in 2012. Three months later, plaintiff environmental groups sued the Army Corps alleging Clean Water Act and National Environmental Policy Act violations. The district court granted summary judgment in favor of the Army Corps, finding that it issued the §404 permit in compliance with federal mandates. Plaintiffs appealed to the Sixth Circuit.

The Surface Mining Control and Reclamation Act of 1977 grants states the exclusive right to regulate surface coal-mining and reclamation operations on nonfederal lands. That right is subject to limited federal oversight to ensure compliance with federal standards. Under the Act, the State of Kentucky, through its Department for Natural Resources' Division of Mine Permits, has exclusive authority to grant surface mining permits within its state. However, because surface mining operations may affect navigable waters of the United States, the federal Clean Water Act requires additional permits to preserve the quality of waters and wetlands. At issue in this case was the §404 permit issued by the Army Corps under the Clean Water Act.

Under §404 of the Clean Water Act, the Army Corps' authority is limited to the narrow issue of the filling of navigable waters within the United States. The Army Corps must review several factors, including the health and welfare of individuals likely to be affected by mining discharge into jurisdictional waters. The Army Corps must also comply with the National Environmental Policy Act by taking a "hard look" at the potential environmental consequences of its actions and by preparing an environmental-impact statement or environmental assessment, depending on the level of its actions.

The Sixth Circuit found that its review of compliance under the National Environmental Policy Act was limited to whether the agency's decision was arbitrary and capricious. As such, the Sixth Circuit was limited to review whether the Army Corps had adequately studied the issues surrounding the §404 permit and had taken a "hard look" at the environmental consequences of its decision. Because the Army Corps' authority is limited to the filling of jurisdictional waters, it did not have authority to review the entire mining operation, as plaintiffs suggested.

Moreover, the Sixth Circuit found that the Army Corps and the Environmental Protection Agency had adequately addressed health concerns, even though those concerns were the primary responsibility of the Kentucky Division of Mine Permits. The Sixth Circuit held that the Army Corps performed an environmental assessment reasonably limited in scope to the effects closely related to the discharge of dredged or fill material into navigable waters and approved a mitigation plan that was rationally designed to maintain the water integrity near the mine's location. Therefore, the Army Corps did not act arbitrarily and capriciously in its decision to issue the §404 permit.

Panel: Judges Keith, Siler, and Rogers

Date of Issued Opinion: March 7, 2014

Docket Number: 13-6153

Decided: Petition for Review of a Motion for Summary Judgment granted in favor of the U.S. Army Corps of Engineers.

Counsel: ARGUED: Neil Gormley, EARTHJUSTICE, Washington, D.C., for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellee Lecco. ON BRIEF: Neil Gormley, Jennifer C. Chavez, EARTHJUSTICE, Washington, D.C., Joseph M. Lovett, J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, Mary Cromer, APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky, for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, Kevin M. McGuire, JACKSON KELLY PLLC, Lexington, Kentucky, for Appellee Leeco.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0046p-06.pdf

Case Alert Author: Minyon Bolton

Author of Opinion: Judge Rogers

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 01:46 PM     6th Circuit  

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