Wednesday, January 11, 2012
Jan 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1049. Appealed from the United States District Court for the Southern District of West Virginia, at Huntington. In this unpublished opinion which is not binding precedent in the circuit, the appeal concerns West Virginia's statutory and regulatory program under the Surface Mining Reclamation and Control Act of 1977 (SMCRA). Appellants Ohio River Valley Environmental Coalition, Inc. and West Virginia Highlands Conservancy, Inc. (collectively OVEC) challenge Appellee Kenneth Salazar's approval, in his official capacity as Secretary of the Interior (Secretary), of two amendments to West Virginia's surface coal mining regulations.
On cross-motions for summary judgment, the district court considered OVEC's argument that the Secretary's approval was arbitrary and capricious because the amendments violate SMCRA's mandate that "[n]othing in [the Act] shall be construed as superseding, amending, modifying, or repealing" the Clean Water Act (CWA), 33 U.S.C. §§ 1151-75, "the State laws enacted pursuant thereto, or other Federal laws relating to the preservation of water quality," 30 U.S.C. § 1292(a)(3). The district court denied OVEC's motion for summary judgment, granted summary judgment in favor of the Secretary and Intervenors-Appellees West Virginia Department of Environmental Protection (WVDEP) and West Virginia Coal Association (WVCA) (collectively Intervenors), and entered a final judgment in favor of the Secretary and Intervenors. The Appeals Court affirmed the district court decision.
The focus of this case is West Virginia's regulatory provision requiring WVDEP to prepare a CHIA [cumulative hydrologic impact assessment] in conjunction with its review of surface coal mining permits. West Virginia's first proposed amendment repeals its definition of "cumulative impact" in the State's CHIA provision and the second amendment at issue in this case adds a definition for "material damage to the hydrologic balance outside the permit area."
The Appeals Court concluded that, ". . .we agree with the district court's analysis. The district court properly determined that the Secretary 'has provided an adequate basis for his approval' and that 'West Virginia's material damage definition does not supersede, amend, modify, or repeal the [CWA].' . . Accordingly, we affirm on the basis of the district court's well reasoned opinion."
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Posted by JPMcJ at 4:11 PM