"The Mountaintop Mining Litigation - How Far-Reaching Will its Impacts Be?," Crowell & Moring Mining Law Monitor

November 2000

Author: Edward M. Green.

On October 20, 1999, Chief Judge Charles H. Haden, II, of the U. S. District Court for the Southern District of West Virginia issued a sweeping opinion and order overturning decades of accepted mountaintop mining practices in West Virginia by permanently enjoining the West Virginia Department of Environmental Protection ("WVDEP") "from approving any further surface mining permits under current law that would authorize placement of excess spoil in intermittent and perennial streams for the primary purpose of waste disposal." Bragg v. Robertson, 72 F. Supp. 2d 642. (1999). Much has been written about Judge Haden's decision, and it is not the purpose of this article to analyze it in detail. Suffice it to say that the ruling is one of several resulting from a citizen suit filed in July 1998 by a coalition of individuals and the West Virginia Highlands Conservancy against the WVDEP and the U.S. Army Corps of Engineers ("Corps") for violating the Surface Mining Control and Reclamation Act of 1977 ("SMCRA") and the Clean Water Act ("CWA").

Surface Mining Regulations at Issue

All of Judge Haden's rulings in Bragg v. Robertson are important, but it is his October 20, 1999 decision which has generated the most controversy to date. The decision concluded that the WVDEP and federal Office of Surface Mining ("OSM") buffer zone rules applied to all portions of intermittent and perennial streams. The OSM buffer zone rule provides that:

No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream. . . .
Judge Haden's ruling overturned 20 years of federal and state interpretation that the buffer zone rule applied only to those segments of streams above or below valley fills.

Judge Haden also held that an August 1999 memorandum of understanding between the Environmental Protection Agency ("EPA"), OSM, the Corps, and the WVDEP, which attempted to harmonize critically important potential discrepancies between SMCRA and the CWA, incorrectly interpreted CWA § 404 to authorize valley fills for disposal of excess spoil. According to Judge Haden, overburden or excess spoil is "waste," not "fill material" subject to Corps authority under SMCRA § 404. A joint notice of proposed rulemaking by EPA and the Corps, which was published in the FEDERAL REGISTER earlier this year and would revise the definition of "fill material," may resolve this portion of Judge Haden's October 20, 1999 ruling.

These rulings stunned the West Virginia coal mining industry and the WVDEP and left them in a state of regulatory disarray. The controversy was such that several days later, on October 29, 1999, Judge Haden stayed his October 20 ruling, tartly observing that while the "present record . . . militates in favor of denying a stay," nevertheless, "a firestorm of reaction has come forth . . . predicting that the injunction will cause unprecedented economic and social dislocation throughout West Virginia."

Now, just over a year after Judge Haden's decision, the case has been briefed on appeal. On December 7, 2000, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit will hear oral arguments in Richmond, Virginia, on the appeals of the WVDEP and the West Virginia coal mining industry. Because of the stay, the full impact of Judge Haden's October 20 decision has not yet materialized. Nevertheless, permits for new coal mining operations have not been issued in West Virginia, and modifications and extensions of existing permits have been delayed. A sense of unease and watchful waiting also permeates other Appalachian states, and earlier this past summer a citizens group in Kentucky filed a notice of intent to sue the state and federal governments along lines similar to the West Virginia litigation.

Further Concern: Compliance with NEPA

The outcome of the Fourth Circuit's review of Judge Haden's Decision will certainly have enormous implications for the West Virginia coal mining industry and, in all likelihood, for other operators mining coal in Appalachia and the remainder of the eastern United States. Yet, another facet of this litigation is likely to have at least as great, and perhaps an even broader, impact on coal mining east of the Mississippi River - the environmental impact statement ("EIS") which the suit has spawned.

The National Environmental Policy Act ("NEPA") establishes a federal process for the analysis of the environmental impacts of proposed "major federal actions significantly affecting the quality of the human environment." That analysis is carried out through the preparation of a detailed and usually voluminous EIS. The mountaintop mining EIS had its genesis in a December 23, 1998 Settlement Agreement in Bragg v. Robertson, which was concluded before any decisions on the merits of the litigation by Judge Haden. One of the key terms of the settlement agreement was a promise by the defendants to prepare an EIS on a proposal to consider developing agency policies, guidance, and coordinated agency decisionmaking processes to minimize, to the greatest extent practicable, the adverse environmental effects to waters of the United States, to fish and wildlife resources affected by mountaintop mining operations, and to natural resources that could be affected by the size and location of excess spoil disposal sites and valley fills.

One of the problems with the mountaintop mining EIS under development is its extraordinarily broad and vague scope. Even though initially Bragg v. Robertson only engaged one federal agency (the Corps), the Settlement Agreement effectively brought OSM, EPA, and the U.S. Fish and Wildlife Service into the fray, although those agencies officially are not defendants. All of them published notices in the FEDERAL REGISTER of February 5, 1999, seeking comments from the public by March 31, 1999, on the scope of the EIS. While the Settlement Agreement stated that the EIS would be completed by the end of this year, for a variety of reasons (both political and technical) it now appears that the EIS will not be published even in draft for public comment until, at the earliest, January 2001. As this article goes to press, the WVDEP and the federal agencies have made an enormous effort to gather and analyze technical water quality and quantity and biological data. Some important studies are still incomplete, however, and this is one of the reasons for the delay of the EIS. The politics of the EIS process has caused delay too because the substantive importance of the EIS has generated vigorous debate among the WVDEP and the involved federal agencies for management and control of the process. It is understood that EPA It is understood that EPA and the Department of Justice, in particular, are aggressively attempting to control the EIS process.

The EIS is important because it is virtually certain to drive major changes in the regulatory regime dealing with permitting and performance standards for coal mining. Because it is so broad and vague in scope, the EIS is likely to affect all methods of mining, both surface and underground, in Appalachia, the eastern U.S., and, perhaps, even ultimately throughout the nation. The regulations may well result in higher costs and fewer permits being issued to mine coal east of the Mississippi, regardless of the mining method being used. They may also preclude the development of significant coal reserves. Indeed, the October 2, 2000 issue of COAL OUTLOOK quotes unidentified federal officials as stating that the mountaintop mining litigation and its ramifications could "sterilize" 80% of eastern coal.

What is most important to keep in mind is that the EIS process is now independent from any other aspect of the Bragg v. Robertson litigation. Thus, for example, development of the EIS and regulations driven by it will be continue regardless of the outcome of the Fourth Circuit appeal of Judge Haden's October 20, 1999 ruling, and regardless of the outcome of the November 7 Presidential election.

Slurry Impoundments - Another Potential Complication

To complicate matters further, it is likely that as a result of the October 11 coal slurry impoundment accident in Inez, Kentucky, there will be a hue and cry for revisions to both the OSM and Mine Safety and Health Administration ("MSHA") regulations for slurry impoundments. This regulatory initiative will almost certainly require an EIS. Perhaps that EIS will be folded into the mountaintop mining EIS process or at least brigaded with it in some fashion. All of this will require careful and vigorous response by the industry.

At this juncture, the West Virginia coal mining industry (through its state trade associations) is diligently at work to make sure that the technical data is being gathered and analyzed in a scientifically correct fashion. This effort is a fundamental part of any course of action to keep the EIS process honest, because experience teaches that some federal agencies are adept at tailoring technical data and analyses to support predetermined results. As the EIS process continues, it will merit careful and proactive attention in order to achieve the most favorable outcomes possible. At this time, the only certain prediction is that the status quo that existed prior to Judge Haden's October 20, 1999 decision will not be restored.

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922