This news story originally provided by The Charleston Gazette

March 22, 2005

Bush, industry seek reversal of mine ruling

By Ken Ward Jr.
Staff writer

A federal judge overstepped his authority when he blocked the streamlined permitting of new mountaintop removal coal mines, the Bush administration says in a new legal brief.

Lawyers for the Army Corps of Engineers asked a federal appeals court to overturn the July 2004 ruling by U.S. District Judge Joseph R. Goodwin.

Corps lawyers said that Goodwin’s ruling came in the third legal effort to “halt the practice of valley fill mining.”

In a separate brief, coal industry lawyers also asked the 4th U.S. Circuit Court of Appeals to throw out Goodwin’s ruling.

Industry lawyers criticized Goodwin’s decision as the “latest unwarranted and impermissible dismantling” of mountaintop removal regulations by federal judges in Southern West Virginia.

Since Jan. 1, the corps has approved seven new mining projects in West Virginia through more thorough permit reviews, agency officials have said.

Over the last year, coal production in West Virginia is up about 7 percent over the previous year, according to the U.S. Department of Energy.

Late Friday, the Corps and various industry groups filed the first in a series of briefs with the Richmond, Va.-based appeals court.

Since 2001, the 4th Circuit — dubbed the nation’s most conservative appeals court by The New York Times — twice overturned rulings by the late U.S. District Judge Charles H. Haden II to force more strict regulation of mountaintop removal.

As with Haden’s two rulings, the case before Goodwin deals with complicated questions about how the federal Clean Water Act applies to strip mining.

Specifically, the Goodwin ruling examined the corps’ historic practice of approving valley ill waste piles through a Clean Water Act authorization called Nationwide Permit 21, or NWP 21.

Under the law, such permits are supposed to be used only to approve categories of activities that, cumulatively, would have minimal environmental effect.

In October 2003, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the Natural Resources Defense Council sued the corps over this practice. Lawyers for those groups argued that the corps could only approve valley fills through individual permits, which receive more detailed reviews.

In his July 8, 2004, opinion, Goodwin ruled that the corps had never concluded that valley fills caused only minimal adverse impacts.

Without such a finding, the judge said, the corps cannot use NWP 21 for any mining permits.

In mountaintop removal, coal operators blast off hilltops to uncover valuable, low-sulfur coal seams. Leftover rock and dirt is shoved into nearby valleys, burying streams.

A 2003 draft study by the corps and other federal agencies found that 1,200 miles of Appalachian streams have been buried or otherwise “directly impacted” by valley fills between 1992 and 2002. That 4 1/2-year study found that past, present and future mining in the region could destroy 1.4 million acres of forest, or 11.5 percent of the study area.

In its brief, the Bush administration argued that the corps had properly implemented congressional intent that nationwide permits streamline the approval process for activities that bury streams.

“This approach by the corps strikes the best balance between environmental concerns and Congress’ desire that a more streamlined and generalized permit for categories of activities be made available, and that the wheel, as it were, not be reinvented each time a permit is issued — in other words compelling the mining industry to seek individual permits in all instances for valley fills,” corps lawyers wrote.

In general, courts must defer to the interpretations of federal environmental agencies unless actions are unreasonable or plainly erroneous.

“That is the great irony of the district court’s approach — in the name of advancing the goals of Congress to make a more streamlined process available, it would in fact make unavailable any such efficiency,” the corps lawyers wrote.

Coal industry lawyers agreed, saying that Congress “intended the Corps to have wide leeway to structure the general permit program, including leeway to operate just as the Corps has.”

Lawyers for environmental groups have 30 days to file their response to the administration and industry briefs.

The 4th Circuit has not yet scheduled oral arguments in the case.