Appeals court rejects coal-mining permit process

bestep@herald-leader.comApril 22, 2013 

Kentucky coal.

PHOTO BY CHARLES BERTRAM | STAFF — Herald-Leader

Environmental groups cheered a ruling by the 6th Circuit U.S. Court of Appeals on Monday that invalidates a streamlined permitting process for surface coal mines.

The decision reverses a lower court's ruling in Eastern Kentucky that upheld the nationwide permitting process adopted by the Army Corps of Engineers in 2007.

The appeals court called the permitting process "arbitrary and capricious" in a 16-page ruling.

Under the nationwide permit, known as NWP 21, coal companies could get permission to fill sections of streams with large amounts of rock blasted away to uncover coal seams.

It "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," Mary Anne Hitt, director of the Sierra Club's campaign against coal, said in a statement Monday.

The Corps failed to properly consider the effect of past surface mining when it approved the permitting process, the appeals court ruled.

The court also said the Corps failed to support its finding that coal companies could make up for burying stream sections by paying for mitigation projects elsewhere.

Though the decision was a victory for environmental groups, the practical effect was difficult to determine Monday.

The Corps already has changed the permitting process at issue in the case, setting forth more stringent permitting conditions in 2012.

However, the agency allowed about 70 mines in Appalachia to keep working until 2017 under the older rules that were being challenged. If any of those mines are still active, they will require more analysis of their effects on waterways, and should have to comply with the stricter standards set up in 2012, according to a news release from environmental groups.

It is possible some of those mines would have to shut down if they're still running, said Steve Sanders, an attorney with the Appalachian Citizens' Law Center, which helped represent the groups that sued the Corps.

Bill Bissett, president of the Kentucky Coal Association, said the ruling would have a minimal effect.

The appeals court put the decision on hold for 60 days so a federal district court in Kentucky and the parties to the lawsuit can figure out the effect on existing projects.

Rick Handshoe, a member of Kentuckians for the Commonwealth who lives in Floyd County, said in a statement that he was pleased with the decision.

"People who live in Eastern Kentucky deal with both the immediate and long-term cumulative impacts of mining every day," he said.

Under the nationwide permit, companies could get a general permit — requiring less environmental scrutiny — if the Corps decided the proposed mining would have only minimal environmental impact, both by itself and when combined with past mining.

Groups in Kentucky and West Virginia sued to overturn the rules. The Kentucky plaintiffs were Kentuckians for the Commonwealth, Kentucky Waterways Alliance and Kentucky Riverkeeper.

A federal judge in West Virginia struck down the permit rules in 2009, but U.S. District Judge David L. Bunning upheld them in Kentucky.

The federal appeals court said the Corps failed to properly consider the present effects of past mining in its assessment of the cumulative impact of the nationwide permit.

The agency considered only the potential effect of mining from 2007 to 2012 without taking into account hundreds of miles of streams filled before 2007, according to a news release from environmental groups.

"An environmental assessment that omits consideration of past impacts, followed by a conclusory suggestion that past impacts did not matter, cannot be in conformance" with the law, according to Monday's decision by a three-judge appeals panel.

The Associated Press contributed to this story. Bill Estep: (606) 678-4655. Twitter: @billestep1

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