The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal Projects Is Limited

by Foley Hoag LLP - Environmental Law
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The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to mountaintop removal mining is limited to impacts directly related to the filling operations that require a permit, rather than the overall impacts of the mining project.

The case concerned a mountaintop removal project by Leeco in Perry County, Kentucky.  Prior to issuing a § 404 permit, the ACOE performed its NEPA review, issuing a Finding of No Significant Impact after completion of the Environmental Assessment.  The plaintiffs challenged the FONSI, arguing that the ACOE had not adequately assessed the potential public health problems of the discharges by the project.

The Court concluded that the ACOE had no obligation to assess overall public health impacts of the project:

In discussing the public health consequences of granting the § 404 permit, the Corps properly focused on the possible public health effects of discharges on the local water supply, as well as those effects caused by air pollution created by the machines that would be conducting permit-relevant site preparation and operations. The Corps reasonably limited its scope of review to the effects proximately caused by the specific activities that were authorized by the permit.

To the Court, there were two important issues.  One is that the Corps regulations:

state that any NEPA document related to a permit should only “address the impacts of the specific activity requiring a [Corps] permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review.”

Under Auer v. Robbins, the Court deferred to the Corps’ interpretation of its own regulations.

Second, the Court was concerned with the broader context of federal regulation of surface mining, which grants primary control of an overall project to the states as a form of “cooperative federalism.”  The Corps’ role is limited.  Indeed, the Court quoted the Corps’ own statement to the effect that:

“in order to prevent the unwarranted situation where ‘the Federal tail wags the non-Federal dog’, the scope of analysis would be confined to the environmental effects of only the activity requiring a Corps permit.”

In short, NEPA review of Corps § 404 permitting decisions cannot serve as a proxy referendum on the costs and benefits of mountaintop removal mining.  Of course, whether one can reasonably expect the State of Kentucky to conduct a balanced overall review is another matter, but Congress does seem to have left that issue to the states.

 tail wagging dog

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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