The Fourth Circuit’s jurisdiction comprises coal rich regions of West Virginia and Virginia. This court has a reputation of being the most conservative in the country, and its stance on the permitting required for mountaintop removal (surface mining) has fallen in line with this ideology. In two landmark citizen suits, Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927 (S.D. W. Va. 2002) and Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) the district courts found for the (environmental group) plaintiffs. The Fourth Circuit reversed the district court in both cases, further edifying its position of turning a blind eye to permit scrutiny and existing scientific research on the harmful effects to the environment and the people of Appalachia.
Surface mining operations, like most activities that cause potential to harm the environment and human health, are regulated through the federal and state permitting process. Surface mining is regulated primarily through the Clean Water Act (“CWA”), and permitting responsibility falls squarely in the purview of the Army Corps of Engineers (“Corps”). In the more recent Aracoma case, the Fourth Circuit granted Seminole Rock deference to the Corps in issuing these permits. In the case of Kentuckians for the Commonwealth, Inc., the Fourth Circuit awarded Chevron deference to the statutory language of the CWA. Both of these cases are illustrate the fact that Corps will issue 404 permits without considering environmental impacts to the mining site or widespread impacts on human health, and federal courts will support the Corps decision.
Courts in the notoriously environmentally friendly Ninth Circuit see things differently. Here, the court concluded that in National Environmental Policy Act (“NEPA”) analysis must be conducted by the Corps when the effects of a proposed federal project in its entirety would not be possible without a 404 permit. Though NEPA only prescribes a necessary process, as opposed to mandating a specific result, courts can enjoin an agency to prepare an impact statement detailing the ways in which the quality of the human environment is affected by the process.
It is against this backdrop that the Supreme Court faces the real possibility of deciding this issues’ fate. The Supreme Court granted certiorari to several surface mining cases in the 1980s, but all had to do with land use under various state acts. With the advent of President Trump’s new Supreme Court picks, the fate of surface mining looks promising. In 2016, Judge Brett Kavanaugh was the lone dissenter in the D.C. Court of Appeals decision to block a permit for what would have been one of West Virginia’s largest strip mining operations. Kavanaugh had a reputation for being to the right of an already right-leaning court when it came to reining in government regulations. President Trump’s first nominee to the Court, Justice Neil Gorsuch has argued in favor of undoing the over three decades old doctrine of Chevron deference. This would effectively mean that the courts would no longer defer to the relevant government agency’s interpretation of a statute.
Arguably, government agencies typically share the opinions of the current administration. After all, the executive administration put the leaders of government agencies into power. It will be interesting to observe whether these new Justices will continue to defer to government agencies like the Environmental Protection Agency (“EPA”) when the EPA is now promulgating a platform that is in line with the current administration’s views.
References
- 33 U.S.C.S. § 1362 (2018). Because of the potential issues arising out of the dredging and filling of waterways created by surface mining, surface mining operations, which necessarily involve the discharge of waste and pollutants into water, cannot proceed without Section 404 permits issued by the Army Corps of Engineers.
- Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)(administrative interpretation controls “unless it is plainly erroneous or inconsistent with the regulation”).
- Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, (1984)(if the statute is ambiguous, the issuing agency has authority, so long as the agency’s decision is neither arbitrary nor capricious).
- White Tanks Concerned Citizens, Inc., v. Strock, 563 F3d. 1033 (9th Cir. 2009).
- 42 U.S.C. §§ 4331-4370 (2014).
- 42 U.S.C. § 4332(C) (2014).
- Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 101 S. Ct. 2352 (1981), KeystoneBituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232 (1987).
- Dino Grandoni, Energy 202: How Brett Kavanaugh Could Rein In Environmental Rules on the Supreme Court, WASHINGTON POST (July 11, 2018) https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2018/07/11/the-energy-202-how-brett-kavanaugh-could-rein-in-environmental-rules-on-the-supreme-court.