Ohio Val. Envir. Coal. v. U.S. Army Corps of Eng.

• Decision Date: 23 March 2007
• Docket Number: Civil Action No. 3:05-0784.
• Citation: 479 F.Supp.2d 607
• Court: U.S. District Court — Southern District of West Virginia
• Parties: OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

479 F.Supp.2d 607

OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil Action No. 3:05-0784.

United States District Court, S.D. West Virginia, Huntington Division.

March 23, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Elena K. Saxonhouse, Jennifer C. Chavez, Stephen E. Roady, Earthjustice, Washington, DC, Joseph Mark Lovett, Lewisburg, WV, for Plaintiffs,

Ann D. Navaro, U.S. Army Corps of Engineers, Cincinnati, OH, Cynthia J. Morris, U.S. Department of Justice, Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources Div., General Litigation Section, Steven E. Rusak, U.S. Department of Justice, Environmental Defense Section, Washington, DC, Stephen M. Horn, U.S. Attorney's Office, Allyn G. Turner, James S. Crockett, Jr., Kelly Beth Griffith, Spilman Thomas & Battle, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

CHAMBERS, District Judge.

Plaintiffs brought this action seeking declaratory relief that the U.S. Army Corps of Engineers violated the Clean Water Act and the National Environmental Policy Act in issuing four permits to fill headwater streams in conjunction with mountaintop removal coal mining. Plaintiffs request injunctive relief to prevent the conduct authorized under these permits and seek judicial review of the agency's decisions under the Administrative Procedure Act. For the reasons stated below, the Court GRANTS judgment in favor of Plaintiffs, RESCINDS the permits and decisions, ENJOINS Defendants and Intervenors from all activities authorized under those permits, and REMANDS the permits to the Corps for further proceedings consistent with this Memorandum Opinion and Order.

I. INTRODUCTION

Coal mining has long been part of the fabric of Appalachian life, providing jobs to support workers and their families and energy to fuel the nation. Unfortunately, coal mining also exacts a toll on the natural environment. In particular, the mining technique at issue in these permits potentially results in dramatic environmental consequences. The Honorable Charles H. Haden II, after a firsthand examination of mountaintop removal mining sites in southern West Virginia, offered the following description:

[M]ined sites were visible from miles away. The sites stood out among the natural wooded ridges as huge white plateaus, and the valley fills appeared, as massive, artificially landscaped stair steps. Compared to the thick hardwoods of surrounding undisturbed hills, the mine sites appeared stark and barren and enormously different from the original topography.

Bragg v. Robertson, 54 F.Supp.2d. 635, 646 (S.D.W.Va.1999) (issuing preliminary injunction upon finding irreparable harm).

This lawsuit represents another challenge against the coal industry and governmental regulators over mountaintop removal coal mining. The controversy surrounding this method of coal mining has spawned numerous lawsuits by environmentalists against state, and federal regulators involved in the approval and use of mountaintop removal mining in West Virginia and neighboring Appalachian states.¹ The Honorable Paul V Niemeyer, speaking for a panel of the Fourth Circuit, aptly described the backdrop for this controversy six years ago:

Mountaintop-removal coal mining, while not new, only became widespread in West Virginia in the 1990s. Under this method, to reach horizontal seams of coal layered in mountains, the mountaintop rock above the seam is removed and placed in adjacent valleys; the coal is extracted; and the removed rock is then replaced in an effort to achieve the original contour of the mountain. But because rock taken from its natural state and broken up naturally "swells," perhaps by as much as 15 to 25%, the excess rock not returned to the mountain — the "overburden" — remains in the valleys, creating "valley fills." Many valley fills bury intermittent and perennial streams and drainage areas that are near the mountaintop. Over the years, the West Virginia Director of Environmental Protection (the "Director" or "State Director"), as well as the U.S. Army Corps of Engineers, has approved this method of coal mining in West Virginia.

The disruption to the immediate environment created by mountaintop mining considerable and has provoked sharp differences of opinion between environmentalists and industry players.

Bragg v. West Virginia Coal Assoc., 248 F.3d 275, 286 (4th Cir.2001).

In this matter, environmentalists have targeted the U.S. Army Corps of Engineers ("Corps"). Although the Corps has no direct regulatory authority with respect mountaintop removal coal mining, it plays an indirect role through its control over a critical byproduct of mountaintop removal mining: valley fills, which entail burying streams when valleys are filled with overburden. Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq., vests authority in the Corps to issue permits for the disposal of fill material into the waters of the United States. Without such a permit, the discharge is prohibited, thus precluding the construction of valley fills necessary for mountaintop removal coal mining.

II. PROCEDURAL BACKGROUND

In this case, the Corps issued permits to five coal companies between July 2005 and August 2006 after reviewing the permit applications pursuant to Section 404 and the simultaneous analysis required under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321, et seq. As to each permit, the applicants provided a voluminous amount of material to the Corps to consider, much of which also was submitted to other regulatory authorities for their review under state and federal surface mining regulations and other environmental statutes. Though thousands of pages of consultants' reports, application plan documents, correspondence, and comments by other agencies and interested persons have been compiled in the administrative records, the critical documents for each decision are remarkably similar, and often identical in key findings.

These proceedings began shortly after the Corps issued the July 17, 2005 permit for the Camp Branch Surface Mine ("Camp Branch"). Ohio Valley Environmental Coalition ("OVEC"), Coal River Mountain Watch, and West Virginia Highlands Conservancy ("Plaintiffs"), grassroots organizations dedicated to the improvement and preservation of the environment, filed suit alleging the Corps, Lieutenant General Carl A. Strock, Commander and Chief of Engineers, and Colonel William E. Bulen, Commander, Huntington District ("Defendants") acted arbitrarily and capriciously in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, in issuing the permit contrary to the substantive and procedural provisions of both the CWA and NEPA. In November 2005, Plaintiffs amended their Complaint to challenge the August 23, 2005 permit issued for the Black Castle Contour Surface Mine ("Black Castle").

In January 2006, Aracoma Coal Company and Elk Run Coal Company, holders of the Camp Branch and Black Castle permits, respectively, intervened as defendants in this matter. Shortly thereafter, Plaintiffs again amended their Complaint to include the December 22, 2005 permit issued to Alex Energy, Inc. for the Republic No. 2 Surface Mine ("Republic No. 2"). Alex Energy, Inc. subsequently intervened. In addition, the West Virginia Coal Association, a trade association representing the vast majority of West Virginia's underground and surface coal mine production companies, intervened in March 2006.

The Corps issued a fourth permit on April 28, 2006, to Independence Coal Company for the Laxare East Surface Mine ("Laxare East"). Plaintiffs again contested the issued permit, which the Court consolidated with this proceeding. Independence Coal Company similarly intervened. In August 2006, Plaintiffs amended their Complaint for the third time to challenge a permit issued to Alex Energy, Inc. for the Republic No. 1 Surface Mine. The Republic No. 1 permit is not part of this trial, however, because it was not yet ripe having been issued on the eve of trial.²

In sum, Plaintiffs allege in their Third Supplemental Complaint that the Corps acted arbitrarily, and capriciously in violation of the APA in issuing the permits for the. Camp Branch, Black Castle, Republic No. 2, and Laxare East mine sites.³ Specifically, Plaintiffs claim the Corps violated NEPA by issuing the permits without first preparing an Environmental Impact Statement ("EIS"), failing to adequately assess the effects of Intervenors' conduct, improperly limiting the scope of analysis, and ignoring relevant evidence regarding the cumulative effects of the permits on the environment. In addition, Plaintiffs argue Defendants failed to comply with the CWA and its governing regulations by improperly evaluating the structure and function of the streams impacted, failing to characterize the affected streams as riffle and pool complexes,⁴ ignoring relevant evidence relating to storm runoff and flooding, and relying on untested and questionable mitigation measures to offset the destroyed streams.

In response, Defendants and Intervenors⁵ counter that the Corps adhered to the required process for issuing the permits under the CWA and NEPA and did not act arbitrarily and capriciously, in doing so. The Corps asserts that it adequately considered all relevant factors; including stream functions, the effects on the aquatic ecosystem, the existence of riffle and pool complexes, and the cumulative impacts of the permitted activities to the watersheds.⁶ Further, the Corps argues that it imposed appropriate compensatory mitigation conditions on the CWA permits of at least a 1:1 linear foot basis based upon its best professional judgment.

This case originally was scheduled for trial in June 2006 as to the first four...