There was an interesting ruling earlier this month out of the 4th U.S. Circuit Court of Appeals in Richmond, in which citizen groups were again blocked in their efforts to litigate against a mountaintop removal mining permit using the growing body of science about mining’s public health effects.
The Jackson Kelley law firm, which represented the mining company in this case, summarized the results this way in a post on its blog:
The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.
On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Coal River Mountain Watch, and Sierra Club filed suit, claiming that the Corps had violated the Clean Water Act and NEPA by not considering a series of studies allegedly linking mining to adverse health impacts.
I’ve posted a copy of the 4th Circuit decision here, and also posted the citizen group brief, the coal company brief, and the Corps’ brief.
Readers may recall that this issue came up before in other cases, one in which U.S. District Judge Robert C. Chambers refused to consider these health studies and another in which the 6th Circuit Court of Appeals sided with the Corps and the coal industry.
The latest ruling from the 4th Circuit explains:
The Corps did not consider the studies OVEC cited in its comment letter, explaining that the issues those studies raised regarding the relationship between surface coal mining and public health “are not within the purview of the Corps’ regulatory authority, but are considered by WVDEP during the SMCRA permitting process.”
… The activity OVEC seeks to force the Corps to study–surface coal mining–is neither the “specific activity” authorized by Raven Crest’s section 404 permit nor an aspect of the Boone North mine over which the Corps has “sufficient control and responsibility to warrant Federal review.”