Tuesday, February 17, 2009

Ohio Valley Environmental Coalition v. Elk Run Coal Co.

Feb 13: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 07-1355, 07-1479, 07-1480, 07-1964, 07-2112. This is a high profile case on the controversial issue of mountaintop mining, involving dozens of parties Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as OVEC) challenge the U.S. Army Corps of Engineers (Corps) issuance of four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations.

Granting judgment for OVEC, the district court rescinded the permits as violations of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). The court also enjoined all activity under those permits and remanded to the Corps for further proceedings consistent with its order. Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were "waters of the United States" and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.

The Corps appealed the two orders and in a split decision, the Fourth Circuit reversed and vacated the district court’s opinion and order of March 23, 2007, and vacated the district court’s injunction. Additionally, the Fourth Circuit reversed the district court’s June 13, 2007, grant of declaratory relief and remanded the case for further proceedings consistent with its opinion.

The Appeals Court provides a straightforward explanation of the controversial practice of mountain top removal coal mining saying,"The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as "spoil." Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (overburden) remains in the valley, creating a 'valley fill' that buries intermittent and perennial streams in the process.

"Water that collects in the fill must be moved out to ensure the fill’s continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or "toe") of the fill. But, because West Virginia’s steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition."

On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations -- treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 permitting -- was entitled to deference. Intervenors have raised these same challenges to the district court’s ruling, but also argued that OVEC’s stream segment claim was barred in the first place under principles of res judicata [a matter already decided by the court].

The majority Appeals Court indicates that, "A complex statutory framework undergirds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion." The Appeals Court says it appreciates "the statutory tightrope that the Corps walks in its permitting decisions" and rules, "The Corps, in permitting sediment ponds and accompanying stream segments under its § 404 authority, is attempting to harmonize the two statutes’ [Clean Water Act & Surface Mining Control and Reclamation Act] goals: ensuring that mining operations can proceed while maintaining the highest level of water quality possible outside of the mining area."

On the issue of "in-stream sediment ponds," the Appeals Court ruled, "Sediment ponds represent the 'best technology currently available' for the treatment of sedimentary runoff from surface mining valley fills. In fact, the regulations of the Department of the Interior’s Office of Surface Mining specifically contemplate the use of in-stream sediment ponds. 30 C.F.R. § 816.46(c) (2008). While ideally these ponds would be located immediately adjacent to the fills, the steep Appalachian terrain often does not allow this result. The topographical realities of the area make stream segments a necessary component of the construction of a waste treatment system for valley fill runoff. (See, e.g., J.A. 653.) This system, in turn, is necessary to ensure that water released from the mining area into existing streams meets CWA § 402 standards. The Appeals Court ruled "the Corps’ interpretation of its authority was reasonable in light of the CWA" and the Agency is "entitled to deference."

The dissenting minority opinion, which concurred in the parts of the majority opinion upholding the scope (or physical boundary) of the Corps’ NEPA analysis and the Corps’ interpretation of its regulatory definition of "waters of the United States,"the dissenting justice said, "In upholding the Corps’ interpretation of its obligations under § 230.11(e), the majority declines to give effect to the unambiguous requirements of the regulations. . . By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. . ."

Earthjustice, the public interest law firm representing several of the environmental organizations in the case issued a release saying, "The ruling will permit mining companies to conduct devastating mountaintop removal coal mining operations without acting to minimize stream destruction or conducting adequate environmental reviews. As a result, Appalachia could now be facing up to 90 new mountaintop removal coal mining operations, which would destroy huge swaths of the Appalachian Mountains." Steve Roady, Earthjustice attorney said, "We believe the decision is wrong on the law and the science. This fight is not over until mountaintop removal mining is over. We will continue to litigate, and in addition, the new administration must take immediate steps to curb the terrible practice of mountaintop removal mining and undo the mistakes of the past."

Access the complete opinion and dissent (
click here). Access a release from Earthjustice and link to additional information (click here). Access links to various media reports on the ruling (click here).

Friends Milwaukee v. Milwaukee Metro

Feb 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1103. The Appeals Court comments on the long history of litigation on the case saying, "After over six years of litigation and two trips back and forth between the district court and this court, we are hopeful that the sun is breaking through." The case involves Friends of Milwaukee’s Rivers and Lake Michigan Federation, n/k/a Alliance for the Great Lakes (collectively, Friends), and their citizens’ suit against the Milwaukee Metropolitan Sewerage District (MMSD) under the Federal Water Pollution Control Act (the Clean Water Act or the Act), alleging that certain sanitary sewer overflows that occurred between January 1, 1995 and September 25, 2001 were violations of MMSD’s Clean Water Act permit and of the Act itself. The State of Wisconsin (the State) also filed suit against MMSD.

On May 19, 2008, the WDOJ and MMSD resolved the WDOJ’s 2005 enforcement action with a new stipulation (the 2008 Stipulation). The district court found that the 2002 Stipulation was a diligent prosecution for privity purposes, and therefore dismissed plaintiffs’ suit on res judicata grounds. Plaintiffs appealed the dismissal as well as the denial of their motions to supplement the record. The Appeals Court says, "The questions presented in this successive appeal are relatively narrow. Friends do not challenge the sufficiency of the evidence supporting the district court’s decision." The Appeals Court concludes that the, "district court was within its discretion when it found that the letter did not set forth the activities of the EPA. Moreover, even if any abuse of discretion had occurred, it would have been harmless."

Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

Hill v. Gould

Feb 13: In the U.S. Court of Appeals, DC Circuit, Case No. 07-5026. After winning a lawsuit against the Secretary of the Interior, Joyce M. Hill filed an application to recover her attorney’s fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. The district court denied the application on the basis that the Secretary’s position at the merits stage was substantially justified. Hill appealed. The Appeals Court affirmed the district court denial.

The original case involved numerous charges of wrongs the mute swan species had allegedly suffered. Hill's principal claim was that the Secretary of the Interior improperly denied the species the protection of the Migratory Bird Treaty Act. The district court held that the Secretary’s List of Migratory Birds rested on "a permissible construction of the Treaty Act" and granted the Secretary’s motion for summary judgment. The DC Circuit overruled saying, "the court held that the Secretary’s exclusion of the mute swan from the protected bird list was arbitrary and capricious under the Administrative Procedure Act."

Access the complete opinion (
click here).