We’re only two days into Earth Week — if we must limit it to one week out of the year — but it sure is getting off to a great start. In the past two days, two major court rulings have underscored the need for increased scrutiny from the federal agency responsible for evaluating environmental impacts of mountaintop removal coal mining according to the National Environmental Policy Act and issuing permits under the Clean Water Act.
Yesterday, the 6th U.S. Court of Appeals revoked the U.S. Army Corps of Engineers use of Nationwide Permit 21 (NWP 21), a streamlined and inadequate process that has contributed to the expansion of mountaintop removal in Appalachia since 1992. Kentucky and West Virginia residents, with the support of groups including Kentuckians for the Commonwealth, Kentucky Waterways Alliance and the Kentucky Riverkeeper, have challenged the legality of NWP 21 in state and federal court for a decade.
In its ruling, the three-judge panel called the Corps’ actions “arbitrary and capricious” and found that the agency did not follow the applicable Clean Water Act (CWA) and National Environmental Policy Act (NEPA) regulations, which require it to document its assessment of environmental impacts and examine past impacts before issuing new permits. From the ruling:
Though we generally give greatest deference to an agency’s “complex scientific determination[s] within its area of special expertise,” we may not excuse an agency’s failure to follow the procedures required by duly promulgated regulations.
After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards.
According to the Corps, approximately 70 surface mining permits authorized under NWP 21 qualify for a five-year accommodation to “provide and equitable and less burdensome transition” for coal operators. Whatever its impact on existing mountaintop removal permits, the ruling acknowledges that when it comes to protecting Appalachia, the Corps “say-so” is insufficient.
This morning, as word of yesterday’s win for the mountains continued to spread, the U.S. Court of Appeals for the District of Columbia reversed a ruling that overturned the U.S. Environmental Protection Agency’s veto of the Spruce Mine surface mine permit — one of the largest mountaintop removal mines in history.
Earthjustice, which along with Appalachian Mountain Advocates, represented West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Natural Resources Defense Council as friends of the court, called the ruling a major blow to the coal industry’s attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia.
While an earlier ruling called EPA’s interpretation of Section 404 of the Clean Water Act “magical thinking,” today’s announcement reaffirms the EPA’s role in the permitting process. In her ruling, Circuit Judge Karen LeCraft Henderson, concluded that:
… The Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time … Thus, the unambiguous language of subsection 404(c) manifests the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.
These rulings come as research supporting the irreversible damage done by valley fills which have been found to irreversibly damage water quality and the once-abundant aquatic life of many Appalachian streams.
“Today’s decision upholds essential protection for all Americans granted by the Clean Water Act,” said Emma Cheuse, an attorney for Earthjustice. “Communities in Appalachia can finally breathe a sigh of relief knowing that EPA always has the final say to stop devastating permits for mountaintop removal mining. Now, we just need EPA to take action to protect more communities and mountain streams before they are gone for good.”
It has been a good few days for mountains, and the communities of Appalachia. We congratulate and thank our allies — especially Earthjustice, Appalachian Mountain Advocates, West Virginia Highlands Conservancy, the Sierra Club, Coal River Mountain Watch, the Ohio Valley Environmental Coalition, Kentuckians for the Commonwealth, and Natural Resources Defense Council — for their dedication and hard work through years of litigation. Our Earth Week, and the weeks ahead, are brighter for it.