Opponents renew challenge to Corps' Nationwide Permit 21 process

Opponents of the Army Corps of Engineers' Nationwide Permit 21 process for mountaintop surface mining and the resulting valley fills have filed an amended complaint in US district court asking the judge to decide remaining issues of the complicated case.

The Ohio Valley Environmental Coalition and other groups filed a brief March 8 in US District Court for the Southern District of West Virginia asking federal Judge Joe Goodwin for summary judgment on whether the Army Corps of Engineers, Huntington District, has been issuing NWP 21 permits in an "arbitrary and capricious" fashion. "Plaintiffs also request that the court issue an injunction requiring the Corps to cancel any NWP 21 authorizations that may have been granted since this court's previous injunction was reversed and preventing the Corps from issuing any further authorizations under NWP 21."

The long-running case has caused upheaval in how such surface mines are permitted, primarily in West Virginia, where a number of large mountaintop mines were opened in the late 1990s prior to Goodwin's initial ruling on the NWP 21 system, which was overturned in part by the 4th Circuit Court of Appeals last November. In February, the 4th Circuit rejected the request of three environmental groups -- including OVEC, which is leading the case -- that wanted the court to revisit the November decision lifting Goodwin's injunction blocking the general permits for mountaintop mining . The judicial majority did not elaborate on its decision.

"Some of the legal aspects of the case were overturned in the 4th Circuit. When Judge Goodwin decided on the case, he decided on some of the strictly legal aspects of the case" such as how a general permit could be issued and when, Margaret Janes of the Appalachian Center for the Economy and the Environment told Platts.

Case seeks ruling on 'fact-based issues'

The circuit court overturned that specific ruling and remanded the case back to Goodwin because there were remaining issues that were never decided: Fact-based issues such as when a general permit is appropriate. This latest filing asks him to proceed in considering these other issues.

The Appalachian Center is headed by Executive Director Joe Lovett, an attorney representing OVEC in the NWP 21 case along with Jim Hecker.

"By regulation, the Corps isn't allowed to comment on any pending or ongoing legal action," Chuck Minsker of the Huntington District told Platts. The US Department of Justice is representing the Corps.

"This time, the plaintiffs ask the district court not only tostop the Corps from issuing any further authorizations inthe Southern District of West Virginiaunder NWP 21, but also to cancel any authorizations that mayhave been granted since the 4th Circuit's decision," the West Virginia Coal Association said Friday.

Goodwin initially ruled that for any NWP,such a determination had to be made when the Corps issued the NWP, and that the Corps could not defer any of its review until operators actually sought to use the permit.

"That ruling, if applied to other NWPs in other jurisdictions, would have dismantled much of theCorps of Engineers' NWP program," the WVCA said. "The most significant legal issue remaining in the case is whether the Corps violated the National Environmental Policy Act by failing to prepare an environmental impact statement for NWP 21 reissuance."

The Huntington District has not returned to using the broader NWP 21 process since the 4th Circuit Court rejected the plaintiffs' request for the en banc review in February. The Corps is still using the more stringent Individual Permits process for applicants who want to open new coal mines in the district, Minsker said.

The case is Ohio Valley Environmental Coalition v. William Bulen, District Engineer, Army Corps of Engineers, Docket No. 04-2129. -- Steve Hooks, steve_hooks@platts.com For more information, take a trial to Platts Coal Trader at http://www.coaltrader.platts.com.

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