Courts Affirm EPA's Power to Stop Mountaintop Mining

[kpete]

WED APR 24, 2013 AT 10:44 AM PDT
Courts Affirm EPA's Power to Stop Mountaintop Mining
by FishOutofWater

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A decision by the Sixth Circuit of the United States Court of Appeals on Monday revoked the Army Corps of Engineers expedited permitting process, and the activities grandfathered by it, that enabled coal companies to level mountains across Appalachia. Coal companies will no longer be able to skirt environmental laws and regulations with a wink and a nod from the Army Corps of Engineers.

This much is clear from the administrative record: the Assessment omitted the present effects of past actions from its cumulative-impact analysis, as required by 40 C.F.R. § 1508.7, and its conclusory final-decision statements do not cure this defect. Though we conduct “limited” NEPA review, Cmtys., Inc., 956 F.2d at 623, we have a duty to set aside the Corps’ action when it eschews its NEPA obligation to “adequately consider[] and disclose[] the environmental impact of its actions.” Balt. Gas & Elec. Co., 462 U.S. at 97–98. Because the Assessment failed to comply with the NEPA regulations’ requirements, we set aside the Corps’ reauthorization of permit 21 as arbitrary and capricious.
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D. Conclusion

Though we generally give greatest deference to an agency’s “complex scientific
determination[s] within its area of special expertise,” Balt. Gas & Elec. Co., 462 U.S.
at 103, we may not excuse an agency’s failure to follow the procedures required by duly promulgated regulations, see, e.g., Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43. During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper’s demands.

This policy argument misses the point. After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment No. 11-6083 Ky. Riverkeeper Inc., et al. v. Rowlette, et al. Page 16 instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

We hereby invalidate permit 21 as arbitrary and capricious, 5 U.S.C. § 706(2)(A), but stay this ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.



http://appvoices.org/2013/04/23/a-good-week-for-mountains/

more:
http://www.dailykos.com/story/2013/04/24/1204437/-Courts-Affirm-EPA-s-Power-to-Stop-Mountaintop-Mining