This news story originally provided by The State Journal

December 1, 2005

Army Corps Regulations Approved on Appeal

Fourth Circuit says mountaintop mining permit process can continue.

Story by Juliet A. Terry

The environmental community still is reeling from yet another rejection by the U.S. Fourth Circuit Court of Appeals of opposition against the mountaintop removal mining permit process.

But the coal industry is reinvigorated, pleased to see the federal appeals court rule that the Nationwide Permit 21 (NWP) process, which has been invalidated twice by the U.S. District Court for the Southern District of West Virginia, can continue.

U.S. District Judge Joseph Goodwin last year revoked 11 NWP permits issued by the U.S. Army Corps of Engineers in Huntington. The decision means coal operations had to go through a more detailed individual permitting procedure. But the appeals court ruled Nov. 23 that the streamlined NWP permitting process is well within the law and can continue.

"We're obviously very disappointed," said Cindy Rank, chairwoman of the West Virginia Highlands Conservancy Mining Committee. "For the Fourth Circuit to say the NWP is fine is ridiculous."

Chris Hamilton, senior vice president of the West Virginia Coal Association, had a markedly different response to the appeal's court ruling.

"Obviously the industry is very pleased with the Fourth Circuit decision. It serves to untangle the bureaucratic permitting maze which was created by the lower court's decision," Hamilton said. "As it relates to our continued reliance on NWP21, based on the Fourth Circuit's sound reasoning and legal bases, it should be an end to the controversy."

Minimal Impact

NWP 21 approval is for mining activities that involve discharge or placing dredged or fill material into American waterways, such as what occurs during mountaintop removal mining. The permit is intended for mining activities that cause no more than minimal damage to the environment.

Environmental groups, such as the Highlands Conservancy, Coal River Mountain Watch and Ohio Valley Environmental Coalition, have been trying to stop mountaintop mining for years, attacking the validity of the NWP process.

Ranks said the NWP "does not address the cumulative impact of the mining activities. The (Fourth Circuit's) decision is just ludicrous," Rank said. "They didn't see the need to address the cumulative impact. The NWP is just insufficient to do those things."

According to the Fourth Circuit opinion, however, the NWP 21 process does take into account long-term environmental impact, and it gives the corps the ability to police mining activities and revisit permits that go beyond their project environmental impact.

The court quoted a corps document that stated the corps "determined that NWP 21 ... will authorize only those activities with minimal adverse effects on the aquatic environment, individually or cumulatively."

In addition, the regulations "gives the corps the authority to revoke or modify a general permit if, after issuing the permit, it 'determines that the activities authorized by such general permit have an adverse impact on the environment,'" the court said.

Predictable Permitting

Hamilton said the decision "provides a legal basis and framework to bring the West Virginia permitting process in line with surrounding jurisdictions."

"It doesn't make it easier, just more efficient and predictable," he said, explaining that predictability and fairness in the permitting process encourages investment in the coal industry in West Virginia.

"In this particular issue, it's a green light for mining, but there is a case pending just across the state line that we have to watch," Hamilton said.

The environmental groups are pursuing a similar lawsuit in Kentucky, Rank said, and Kentucky falls under a different appeals circuit than West Virginia.

"The Fourth Circuit is notorious for being very conservative. So we just try to find another circuit," Rank said.

But Hamilton believes the Fourth Circuit opinion will hold considerable weight in any future NWP 21 litigation.

"When you read the Fourth Circuit's opinion, you'll find that the court went to great lengths in articulating how the permitting rules should be handled," he said. "This decision goes to the core of procedural issues. It should have an influence on the outcome subsequent decisions."