In the Alpha case, Chambers said that scientific evidence clearly shows mountaintop removal is damaging water quality and aquatic life downstream from mining. But the judge said a previous 4th Circuit decision tied his hands, forcing him to defer to the corps' permit approval.
The 6th Circuit agreed that federal agencies are due broad deference in such cases, but said that the courts "may not excuse an agency's failure to follow the procedures required by duly promulgated regulations." In this instance, the court said, the corps had ignored regulatory requirements of both the Clean Water Act and the National Environmental Policy Act that it "take a hard look" at the environmental impacts before approving more mining permits.
"Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards," the court said. "We may not supply a reasoned basis for the agency's action that the agency itself has not given."
The 6th Circuit case involved the previous practice by the corps of approving many mountaintop removal operations through a streamlined permit process meant only for activities that cause minimal environmental harm. U.S. District Judge Joseph R. Goodwin in Charleston had twice blocked the corps from using such permits, and the case involved authorizations issued under a 2007 version of the agency's "Nationwide Permit 21" for surface coal mining.
That 2007 nationwide permit expired in 2012, and a more restrictive version was issued by the Obama administration. But the corps also created a loophole that gave about 70 uncompleted mining projects until 2017 to operate under the old standards.
It's not clear now what will happen with those projects. The 6th Circuit stayed its ruling for 60 days to allow the parties to "assess the ramifications of this ruling on existing projects" and consider "potential remedies."
The 6th Circuit's decision overturned a previous ruling by U.S. District Judge David Bunning in Pikeville, Ky.
"This decision has been a long time coming," said Judy Petersen, executive director of Kentucky Waterways Alliance, one of the groups that brought the case. "Every year we see the health of rivers and streams in eastern Kentucky declining. "In 2010, according to the Kentucky Division of Water, only 1 percent of eastern Kentucky streams fully supported fish and other aquatic life. I'd say that we can see an impact from mining."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.