Ohio Valley Environmental Coalition v. Hurst

604 F. Supp. 2d 860 (2009)

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Ohio Valley Environmental Coalition v. Hurst

United States District Court for the Southern District of West Virgina
604 F. Supp. 2d 860 (2009)

Facts

The Clean Water Act (CWA) authorized the United States Army Corps of Engineers (corps) (defendant) to issue general permits for activities resulting in discharge of fill into waterways. The CWA required the corps to determine that a type of activity would have only minimal separate and cumulative environmental impact before issuing a general permit. The National Environmental Policy Act (NEPA) required federal agencies such as the corps to develop an environmental-impact statement (EIS) for any action that had a significant impact on the environment. An agency could also make a finding of no significant impact (FONSI). The NEPA applied to the corps’ general permitting process. In assessing the environmental effects of an action, several cases held that agencies could consider mitigation measures that might ameliorate those effects. Coal mining companies operating in the Appalachians often removed entire mountaintops, extracted the coal, and then recreated the mountaintop using the rubble. Excess rubble was deposited in local valleys, obliterating many streams. The corps issued a nationwide permit authorizing the discharge of fill from surface coal mining operations (NWP 21). The corps required entities proposing to undertake individual projects under NWP 21 to obtain authorization from the corps to determine whether an individual project’s environmental impact was minimal. The Ohio Valley Environmental Coalition (coalition) (plaintiff) sued the corps’ Colonel Dana Hurst (defendant). The coalition challenged the legality of NWP 21 under the NEPA, the CWA, and the Administrative Procedure Act (APA). In issuing NWP 21, the corps had made a FONSI based on mitigation measures to be identified on a case-by-case basis according to a process described by the corps. The coalition argued that the mitigation proposal was insufficient.

Rule of Law

Issue

Holding and Reasoning (Goodwin, C.J.)

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