Envtl. Assessments & Impact Statements
District Court finds that in issuing NWP 21 the Corps failed to consider the environmental impacts of mountaintop removal mining
Numerous prior posts have described the recent litigation, legislative initiatives, and administrative actions relative to mountaintop mining. Recently, the battle between Federal District Court Judge Goodwin and the 4th Circuit continued.
In Ohio Valley Environmental Coalition v. Hurst, 2009 U.S. Dist. LEXIS 26339 (S.D.W.VA.: 3/31/09), the District Court held that the Corps had issued NWP 21 (the nationwide permit used in mountaintop mining matters) without preparing an EIS as required by NEPA. He also found that the findings of the Corps under NEPA and the CWA did not provide a rationale explanation for assuming the success of the mitigation process to minimize cumulative impacts, nor did it provide evidence that the mitigation process would be successful or adequately enforced. The Court also found that its conclusion was not barred by Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005) ("OVEC II") because the Court of Appeals "left open the possibility that the Corps' minimal impacts determination was arbitrary and capricious because it 'relied on erroneous premises or ignored relevant data.'" The District Court found that the Corps erred in declining to consider the effects of past activities when determining whether to issue a permit.
Because of the variety of problems that have arisen with NWP 21, most companies have been applying for individual permits in lieu of using NWP 21. Now, however, EPA is examining such permit applications with renewed attention to surface water impacts, and legislation has been proposed that would effectively prohibit many of the common mountaintop mining strategies.
This story is long from over.
P.S. A request by defendants that Judge Goodwin clarify his opinion was denied. See Ohio Valley Environmental Coalition v. Hurst, 2009 U.S. Dist. LEXIS 29950 (S.D.W.VA.: 4/8/09)