Environmental groups have hailed a West Virginia federal court ruling, which they claim will prevent the dumping of coal mine waste in U.S. waters.
West Virginia Coal Association President Bill Raney called the decision by U.S. District Chief Judge Joseph Goodwin devastating.
Several environmental groups had challenged a decision by the U.S. Army Corps of Engineers in 2007 to issue a nationwide permit, NWP21, authorizing the discharge of dredged and fill material (more commonly known as overburden) associated with surface coal mining activities including mountaintop mining.
At the time the Corps issued NWP21, the agency determined that the activities authorized by the nationwide permit would have only minimal cumulative environmental impacts. The Corps also decided not to prepare an environmental impact statement because it determined that the permitted activities would not cause significant environmental impacts.
However, Judge Goodwin said, I FIND that these determinations were arbitrary and capricious under the Administrative Procedures Act... He vacated NWP21 and remanded it to the Corps for further proceedings.
The judge ruled that the Corps did not satisfy the requirements of the Clean Water Act and the National Environmental Policy Act when it issued the national permit. He also questioned the wisdom of the Corps' decision to rely on an unsupported belief in the success of mitigation measures. ...I cannot defer to the Corps' bald assertions that mitigation will be successful.
The decision also found that the Corps has failed to provide any explanation for why it believes mitigation imposed through case-by-case review of NWP 21 (2007) activities will work to mitigate the permit's cumulative impacts to a minimal level.
Goodwin also declared that the Corps may not use the nationwide permit process to circumvent its statutory obligations to thoroughly examine the environmental impacts of permitted activities.
In a statement, Jon Devine, senior attorney for the Natural Resources Defense Council, called the decision a victory for our irreplaceable waterways. A nationwide permit to dump coal mine waste into our waters would have been a recipe for environmental disaster.
Jim Hecker, environmental enforcement director for Public Justice, said, The Corps claim that it can achieve 100% 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. In two recent letters objecting to similar Corps permits, EPA told the Corps the same thing.