This news story originally provided by the The Daily Mail

6/12/04

Environmental groups say permits are illegal

Congress never approved process, lawyer says

Brian Bowling 
Daily Mail staff

The U.S. Army Corps of Engineers broke the law when it started running surface mine permits through a process Congress never approved, the lawyer for three environmental groups says.

Joe Lovett, the lead attorney for the Ohio Valley Environmental Coalition, Coal River Mountain Watch and Natural Resources Defense Council, says in a brief filed in federal court this week that Congress only gave the corps two options when it comes to handling the permits for valley fills and coal waste impoundments.

Under the nationwide permit option, the corps said set conditions and thresholds that guarantee automatic approval for a permit application that meets the criteria. Under the individual permit option, the proposed mining operation has to go through a detailed environmental analysis.

Lovett says the corps' Nationwide Permit 21, which governs surface mine structure, does neither. The process allows coal companies to avoid the time and expense of detailed analyses, but the corps still uses an abbreviated, case-by-case analysis in approving the permits.

"The corps' hybrid option of mixing general permits with case-by-case exceeds its congressional authority," Lovett says.

The three environmental groups are asking U.S. District Judge Joseph Goodwin to overturn the corps' approval of permits for 12 mining operations as well as rule that its nationwide permit is invalid.

In addition to the corps using an illegal permitting process, the environmental groups raise several other issues including that the corps failed to evaluate the nationwide impact that mountaintop removal mining has on the environment.

A ruling in favor of the plaintiffs' claims would give coal companies more of an incentive to minimize the environmental impact of their mines but would also probably raise the cost of mining.

In its response, the corps argues that requiring case-by-case approval for surface mining permits under the nationwide permit provides an additional guarantee that the surface mining activities will have minimal adverse environmental impact.

The corps can legally conclude that the nationwide impact will also be minimal as long as its case-by-case decisions meet those criteria, the agency argues.

The coal industry, in a separate brief, also says the case-by-case decisions are legal and that the corps has properly evaluated the nationwide impact of granting the permits.

All sides in the case have until Tuesday to file another set of briefs that the judge will use in making his decision.

Writer Brian Bowling can be reached at 348-4842.