A Good Win in A Critical Federal Court Case Against MTR

On March 31, OVEC, Coal River Mountain Watch and the Natural Resources Defense Council won a critical case in the federal court for the Southern District of West Virginia.

We had challenged an Army Corps of Engineers "nationwide" permit, which would have authorized waste material disposal from surface coal mining into United States waters. We were represented by the Appalachian Center for the Economy & the Environment and Public Justice.

The courts decision involved a nationwide permit issued by the Army Corps of Engineers under the Clean Water Act Section 404, which gave coal mining operations such as mountaintop removal mines the ability to dump their waste in streams. The judges decision blocks the Corps from authorizing further mountaintop removal permits through the Clean Water Act Section 404.

The court found that the Corps had acted unreasonably in two main respects. First, it ignored the past impacts of similar mining in deciding not to prepare an environmental impact statement under the National Environmental Policy Act (NEPA). Second, the Corps assumed without justification that the effects on streams and other water bodies would be adequately offset by "mitigation" measures, such as building man-made drainage ditches as replacements for destroyed natural streams.

The court found that the Corps did not have an adequate plan to monitor mitigation efforts and require corrective action, an obvious problem considering that mitigation commonly fails to replace the lost resources.

"Mitigation is the centerpiece of the Corps claim that mountaintop removal and valley fills have cumulatively insignificant environmental effects," said Jim Hecker, Environmental Enforcement Director for Public Justice. "The Corps claims that it can achieve 100 percent success in mitigating the burial of streams by creating new streams elsewhere. The court correctly found that this claim is an unsupported belief and a mere promise that has no factual or scientific basis."

The coal industry is expected to appeal this decision to the Fourth Circuit Court of Appeals.

This case and decision differ from a win we had with an earlier ruling by U.S. District Judge Robert C. Chambers. In that case Judge Chambers was examining questions about the adequacy of the Corps review of "individual" permits under Section 404.

Early this year, the Fourth Circuit Court of Appeals overturned that decision. We are considering whether to appeal the case to the U.S. Supreme Court.