Monday, April 29, 2013

Kentucky Riverkeeper, Inc. v. Robert Rowlette, Jr.

Apr 22: In the U.S. Court of Appeals, Sixth Circuit, Case No. 11-6083, Eastern District of Kentucky at Pikeville. The Appeals Court explains that Plaintiffs-Appellants Kentucky Riverkeeper, Inc., Kentucky Waterways Alliance, Inc., and Kentuckians for the Commonwealth, Inc. (collectively Riverkeeper) sued the Army Corps of Engineers alleging violations of the Clean Water Act (CWA), the National Environmental Protection Act (NEPA), and the Administrative Procedure Act (APA), during the Corps' issuance of two nationwide coal-mining waste-discharge permits in 2007. The district court granted summary judgment to the Corps, and Riverkeeper appealed. During Riverkeeper's appeal, the two permits at issue expired. The Appeals Court said, ". . .the case remains in controversy and we reverse the district court's judgment in part."
    In more detail, the Appeals Court said, "Both in its briefing and at oral argument, the Corps relied on its procedures overseeing individual projects' success in mitigating environmental impacts. . . Yet these post-issuance mechanisms do not explain how the Corps arrived at its preissuance minimal cumulative-impact findings. The Corps fails to make this showing despite Hurst's earlier adverse decision on the point. See Hurst, 604 F. Supp. 2d at 887 (deeming 'conclusory' the Corps' 'unsupported belief in the success of mitigation measures' and explaining that the Corps' '"mere listing" of mitigation measures and processes, without any analysis, cannot support a cumulative impacts determination'). . . We acknowledge that the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts, but in making a minimal-cumulative-impact finding, it must, at a minimum, provide some documented information supporting that finding."
    In conclusion, the Appeals Court rules, "Though we generally give greatest deference to an agency's 'complex scientific determination[s] within its area of special expertise,' Balt. Gas & Elec. Co., 462 U.S. at 103, we may not excuse an agency's failure to follow the procedures required by duly promulgated regulations. . . During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper's demands. This policy argument misses the point. 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. We may not supply a reasoned basis for the agency's action that the agency itself has not given. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). We hereby invalidate permit 21 as arbitrary and capricious, 5 U.S.C. § 706(2)(A), but stay this ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies."
    Sierra Club and other groups called the decision a "big win on mining pollution." Mary Anne Hitt, Director of the Sierra Club's Beyond Coal Campaign, issued a statement saying, "Our allies deserve immense credit and warm congratulations for winning an 8 year battle against a permit that serves mountaintop removal mining interests to the great detriment of our Appalachian heritage. The 2007 Nationwide Permit 21 was an ill-conceived permit that allowed mountaintop removal mining to pollute our rivers and streams while doing nothing to protect people or the waterways they rely on.

    "Public Justice, Appalachian Mountain Advocates, and all the organizations they represent have been dogged in their determination to ensure that our waters are safe and mountaintop removal coal mines take responsibility for their own pollution. Today's decision reinforces the need for deep consideration of the human and environmental costs of one of the most destructive forms of mining. While we can never get back the mountains that have been destroyed over the last few decades we will continue the fight to end the practice and ensure that mountaintop removal companies clean up their own pollution. State and federal agencies alike must be held accountable when they fail in their duty to protect our environment and our communities. It's time for binding water quality safeguards which will ensure the protection of our most vital natural resources and the well being of our communities  We couldn't ask for more thoughtful or stronger allies in that fight."

    Access the complete opinion (click here). Access the release from Sierra Club (click here). [#Energy/Coal, #Land, #Water, #CA6]

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