WASHINGTON – More than two months after a federal appeals court upheld coal mining permits issued by the U.S. Army Corps of Engineers, a federal judge condemned the permits as a violation of the Clean Water Act and a threat to the Chesapeake Bay watershed.
Judge Robert B. King of the 4th U.S. Circuit Court of Appeals penned a vigorous dissent Feb. 15 of a November decision in which the court ruled in favor of the Corps. King voiced his disapproval after a majority of the court declined a petition to rehear the case of Ohio Valley Environmental v. Bulen.
Environmental groups also oppose the decision, which upheld a streamlined permitting system for the disposal of fill material from coal mines into waterways throughout the Appalachian region.
“The panel’s decision, in authorizing the Corps to skirt the CWA-mandated permitting process, undermines the enactment’s primary purpose and poses unnecessary risks to one of this nation’s great places,” King wrote.
Three environmental groups sought to force the Corps to conduct more extensive environmental reviews before approving permits for new mining operations. The groups won a lower-court decision, but a three-judge panel of the appeals court unanimously overturned the ruling Nov. 23, finding the permits to have a “minimal” environmental impact. The appellate court voted 5-3, with four abstentions, against rehearing the case.
The court’s opinion was published, setting precedent for the five states in the circuit: Maryland, Virginia, West Virginia, North Carolina and South Carolina.
King bristled at the decision, arguing that it allows the Corps to issue general permits without first determining that the permits will cause “minimal adverse environmental effects,” as mandated by the CWA.
Waterways nationwide are polluted by coal mining practices, said Glenn Bessa, organizer for the Sierra Club’s Central Appalachian region environmental justice program.
“We’re very disappointed in the ruling of the 4th Circuit Court in this case,” Bessa said. “This permit is an absolute disaster. The ruling does not take into account the devastating effects of these permits.”
A West Virginia District Court barred the Corps in 2004 from issuing such permits using a streamlined “general permit” process known as Nationwide Permit 21. The permitting process, which applies only to coal mining projects, was authorized by the Corps in 2002. Operations tied to mountaintop coal mining buried about 1,200 miles of headwater streams in the Appalachian region between 1992 and 2002, according to an Environmental Protection Agency study.
“That case points out the problem of general permits versus specific permits,” said Jon Mueller, director of litigation for the Chesapeake Bay Foundation. “It does have serious problems for local waterways — what we call headland wetlands.”
Rock and dirt dumped from mines inhibit rivers and streams from absorbing nitrogen and phosphorous, which accumulate in the Chesapeake Bay and deplete oxygen levels, Mueller said.
The ruling risks the eradication of waterways throughout the region, King wrote.
“This case is of exceptional importance to the nation and, in particular, to the states in the Appalachian region,” King wrote. “The Appalachian mountains, the oldest mountain chain in the world, are one of the nation’s richest, most diverse and most delicate ecosystems, an ecosystem that the mountaintop coal mining authorized by the Corps’ general permit may irrevocably damage or destroy.”
Bessa, who monitors Maryland waterways, said the Corps should be forced to evaluate the environmental impact of all coal mining projects before they are approved.
“This is a law-enforcement issue,” Bessa said. “The nationwide permit is in violation of the CWA. When you break the law, you should be held accountable.”
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