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.
Well, I haven’t reviewed these Corps Regs, but the CEQ Regs for implementing NEPA clearly require analysis of the full extent of reasonably foreseeable “indirect” effects as follows:
Sec. 1508.8 Effects.
(a) Direct effects, which are caused by the action and occur at the same time and place.
(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.
Charlie: That’s not precisely the issue, here, however. The question isn’t whether the Corps needs to include the indirect effects of the fill. I think that the do. The question is whether they have to examine either the direct or indirect impacts of those parts of the mining project unrelated to the fill. The answer to that is that they do not.
So, to be specific, in the infamous Reserve Mining case (which I was involved in circa 1974-76) , if the Corps were the lead agency, they would have had no obligation to discuss in their EIS the extensively litigated controversy over the induced health effects of discharge of tailings processing water into Lake Superior at the Silver Bay site well removed from the mine? As you may be aware, that case resulted in requirements for such mining operations to practice on-land contained disposal of mine tailings.
Charlie: I think we’re still talking across each other. The impact of the the discharge of tailings would be something related to the activity with respect to which the Corps was issuing that permit and thus would be properly the subject of the EIS. Issues not related to the discharge, however, are not within the Corps’ scope.
Perhaps we are and perhaps we’re not. Having now read the decision, it seems to me that by allowing the EIS to stretch away from the discharge into the economic benefits of the entire project but not the environmental effects of the entire project, the Corps and this court have gotten it wrong.