Appeals court sends Alabama coal permitting back to Corps for more work

A three-judge panel at the U.S. Eleventh Circuit Court of Appeals on March 23 affirmed in part, and reversed in part, a lower court decision in a case involving U.S. Army Corps of Engineers permitting for coal mines.

In this complex environmental case, plaintiffs Black Warrior Riverkeeper and Defenders of Wildlife appealed from the district court’s grant of final summary judgment to the U.S. Army Corps of Engineers, as well as to the Alabama Coal Association and several mining companies, which intervened in the proceedings.

Riverkeeper challenged the 2012 version of Nationwide Permit 21 (NWP 21), a general permit that allows surface coal mining operations to discharge dredged or fill materials into navigable waters under Section 404 of the Clean Water Act. Riverkeeper essentially argued that the Corps arbitrarily and capriciously found that NWP 21 would have no more than minimal environmental effects, in violation of both the Clean Water Act and the National Environmental Policy Act.

The district court first determined that Riverkeeper has standing to sue in federal court because its members suffered injury as a result of the Corps’ decision to enact NWP 21. The appeals court agreed that Riverkeeper has standing, and so it affirmed the district court’s decision on this point. The district court also held that Riverkeeper’s lawsuit was, nonetheless, barred by the equitable doctrine of laches.

“After thorough review, however, we conclude that the Intervenors have shown neither inexcusable delay on the part of Riverkeeper nor prejudice resulting from Riverkeeper’s alleged delay,” said the appeals court decision. “To the extent that Riverkeeper lagged in filing suit, its delay was slight and excused by its need to adequately investigate and prepare its claims in this complex case. Moreover, the Intervenors’ modest showing of harm, stated only at the highest order of abstraction, does not outweigh the potential environmental benefits of allowing Riverkeeper to proceed. We, therefore, hold that the district court abused its considerable discretion in barring Riverkeeper’s suit. As for the merits of Riverkeeper’s environmental claims, the district court concluded, after thorough deliberation, that the Corps’ determinations that NWP 21 would have only ‘minimal cumulative adverse effect’ on the environment, pursuant to the Clean Water Act, and ‘no significant impact’ on the environment, pursuant to the National Environmental Policy Act, were neither arbitrary nor capricious.

“However, literally on the eve of oral argument in this Court, the Corps admitted that it had underestimated the acreage of waters that would be affected by the projects authorized under Nationwide Permit 21. In the face of this new and potentially significant change in the facts, we ordered the parties to provide supplemental briefing on the implications of the Corps’ error. The Corps then conceded that the district court’s decision must be reversed and the matter remanded to the Corps for further consideration based on a more accurate assessment of the potential impacts of NWP 21. We agree. On remand, the Corps shall reconsider its conclusion that the environmental impacts of NWP 21 are minimal in light of all of the relevant data, including the Corps’ recalculated figure for the acreage of waters affected by NWP 21. We expect that it will take the Corps no longer than one year to do so, and, therefore, remand this case to the district court with instructions to remand the matter to the Corps, and to determine whether any further relief may be required.”

A few years ago, the Corps became concerned that activities authorized by NWP 21 were resulting in greater environmental impacts than anticipated, and it suspended NWP 21 in six states in the Appalachian Region in 2010: Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. The Corps did not suspend NWP 21 in Alabama, although the U.S. Environmental Protection Agency subsequently stated in a letter to the Corps that “the same concerns and science that brought about the six state suspension appl[y] to the coal fields of Alabama.” The 2007 NWP 21 expired in 2012. In 2012, the Corps adopted a new course intended, in part, to address the concern that led to its previous suspension of NWP 21 in the six Appalachian states. As a result, the 2012 version of NWP 21, which authorized stream-filling operations for an additional five years, consisted largely of two new provisions.

Under paragraph (a) of the 2012 NWP 21, forty-one projects have been reauthorized within the Black Warrior River watershed; the first reauthorization was granted in May 2012, while the last was granted in either March or April 2013. The grandfathered portions of these projects authorize the filling of approximately twenty-seven miles of stream. According to Riverkeeper, these projects have had a profound effect on the quality of the waters within the Black Warrior River watershed.

In order to block the forty-one reauthorizations granted pursuant to NWP 21(a) and therefore avert further claimed environmental damage, Riverkeeper filed suit in the U.S. District Court for the Northern District of Alabama in November 2013 against the Corps and several Corps officials. The focus of Riverkeeper’s lawsuit is that it was contradictory for the Corps to impose stream-fill limits on new operations, but, at the same time, decline to apply those very same limits to operations authorized by the 2007 NWP 21 and subsequently reauthorized by the 2012 version.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.