Appeals court rejects coal-mining permit process

April 23, 2013

The 6th Circuit U.S. Court of Appeals issued a ruling on April 22 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 U.S. Army Corps of Engineers in 2007. 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, Kentucky’s Herald-Leader reported.

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

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.

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.

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.

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 the decision by a three-judge appeals panel.




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