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Sixth Circuit Court of Appeals Rejects Appeal of Section 404 Permit for Eastern Kentucky Surface Mine

03.17.2014

Sixth Circuit Court of Appeals Rejects Appeal of Section 404 Permit for Eastern Kentucky Surface Mine

On March 7, 2014, the United States Court of Appeals for the Sixth Circuit upheld the decision of the U.S. Army Corps of Engineers to issue a Clean Water Act Section 404 permit for a surface mine in Knott and Perry Counties in Kentucky. Section 404 permits are necessary for activities requiring the placement of dredged or fill material in waters of the United States. The U.S. Army Corps of Engineers issues Section 404 permits, with input from EPA and other federal agencies. When issuing Section 404 permits, the Corps is required to perform certain environmental reviews under the National Environmental Policy Act (NEPA). The permit at issue in this case was granted to Leeco, Inc., and authorized the construction of a hollowfill (use of a valley or hollow to store spoil) and the mining of a degraded stream bed in support of a larger surface mining operation.

Environmental interest groups challenged the permit by arguing that a series of studies purported to establish a link between surface mining and poor public health in Appalachia, and that the Corps improperly refused to consider these studies in its decision to grant the Section 404 permit. When it issued the permit, the Corps stated that it was only required to consider the public health impacts of the particular activity authorized by a specific Section 404 permit, that is, the specific hollowfill and mine through operation subject to the permit. Having conducted this review, the Corps found that the specific hollowfills and mine-through operations planned by Leeco would not negatively impact public health. Opponents of the permit appealed this decision to the U.S. District Court for the Western District of Kentucky. As reported in the July/August, 2013 issue of the Environmental Letter, the U.S. District Court upheld the permit in August 2013, but issued an injunction that prevented work under the permit while the environmentalists pursued their appeal to the Sixth Circuit.

On appeal, opponents of the permit once again argued that the Corps was required to analyze the impact of surface mining on public health generally, and to evaluate the cumulative impact of all surface mining in the region on public health, before it could issue the permit. Like the trial court, the Sixth Circuit agreed with the Corps, and found that the agency’s role in issuing a Section 404 permit is properly limited to only examining the environmental and health impacts of specific projects, and not the impact of all surface mining generally. As the Court stated, “[t]he Corps was not required, as plaintiffs contend, to expand the scope of its review beyond the effects of the filling and dredging activity to the effects of the entire surface mining operation as a whole.”

In addition to clarifying the limited scope of the Army Corps’ review in issuing Section 404 permits to surface mining activities, the Sixth Circuit’s opinion also emphasized the primary role of state mining regulators – here, the Kentucky Department for Natural Resources – in making the ultimate decision as to whether surface mining operations should be permitted. As the Court stated, in regard to surface mining, “Congress intended that primary regulatory power be placed in only one agency, in this case the Kentucky Department for Natural Resources.” Thus, the court held that if “there is scientific evidence establishing that surface mining is generally bad for the public health, the plaintiffs should raise these concerns with…either the federal Office of Surface Mining or the federally approved state regulators.”

The Sixth Circuit’s opinion could serve to significantly limit what has been a key area of challenge to Section 404 permits for surface mining by eliminating the argument that the Corps should review broad-based public health studies in considering whether to authorize specific projects, at least in those states within the Sixth Circuit (Kentucky, Michigan, Tennessee and Ohio). Environmentalists continue to fund and press the results of these health studies in an effort to stop surface mining, despite the weakness of such studies (as addressed in the prior article on this permit appeal). In light of this most recent opinion, however, opponents of surface mining may take their case on the alleged health effects of surface mining to state mining regulators, rather than the Army Corps.


To view a complete PDF of the Environmental Letter March 2014 Issue, click HERE.

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