Ohio Valley Environmental Coalition, Inc. v. United States Army Corps of Engineers , 828 F.3d 316 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2129
OHIO VALLEY ENVIRONMENTAL COALITION, INC.; WEST VIRGINIA
HIGHLANDS CONSERVANCY, INC.; SIERRA CLUB; COAL RIVER
MOUNTAIN WATCH INC.,
Plaintiffs – Appellants,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; THOMAS P. BOSTICK,
Commander and Chief of Engineers, U.S. Army Corps of
Engineers; STEVEN MCGUGAN, Colonel, District Engineer, U.S.
Army Corps of Engineers, Huntington District,
Defendants – Appellees,
RAVEN CREST CONTRACTING, LLC,
Intervenor/Defendant – Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:12-cv-06689)
Argued: May 11, 2016 Decided: July 8, 2016
Before DUNCAN, WYNN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wynn and Judge Harris joined.
ARGUED: Peter M. Morgan, SIERRA CLUB, Denver, Colorado, for
Appellants. Robert Harris Oakley, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Douglas J. Crouse, JACKSON KELLY,
PLLC, Charleston, West Virginia, for Appellees. ON BRIEF:
Joseph M. Lovett, J. Michael Becher, APPALACHIAN MOUNTAIN
ADVOCATES, Lewisburg, West Virginia, for Appellants. John C.
Cruden, Assistant Attorney General, Aaron Avila, Ruth Ann
Storey, Austin Saylor, Environment and Natural Resources
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Federal Appellees. Robert G. McLusky, JACKSON KELLY, PLLC,
Charleston, West Virginia, for Appellee Raven Crest Contracting,
LLC.
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DUNCAN, Circuit Judge:
Raven Crest Contracting, LLC (“Raven Crest”) operates a
surface coal mine near Racine, West Virginia, known as the Boone
North No. 5 Surface Mine (“the Boone North mine”). This action
challenges the adequacy of the environmental review conducted by
the Army Corps of Engineers (“the Corps”) before the Corps
issued a permit pursuant to section 404 of the Clean Water Act,
33 U.S.C. § 1344, authorizing Raven Crest to discharge fill
material into waters of the United States in conjunction with
that mine.
The Plaintiffs-Appellants are a consortium of environmental
groups, collectively “OVEC,” 1 that have engaged in advocacy
efforts involving surface coal mining operations in West
Virginia in the past. OVEC claims that the Corps violated both
the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321
et seq., and the Clean Water Act by failing to consider evidence
that surface coal mining is associated with adverse public-
health effects in nearby communities. The district court
disagreed, and granted the Corps’ and Raven Crest’s motions for
summary judgment, holding that the Corps properly determined
that the connection between surface coal mining and public
1
OVEC includes the Ohio Valley Environmental Coalition, the
West Virginia Highlands Conservancy, Coal River Mountain Watch,
and the Sierra Club.
3
health was an issue not properly within the scope of its
environmental review. OVEC appealed. Because this case is
materially indistinguishable from our precedent in Ohio Valley
Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177
(4th Cir. 2009), in which we rejected a similar challenge, we
affirm.
I.
At the Boone North mine, Raven Crest planned to “provide
for the safe and efficient extraction of approximately
6.8 [million] tons of steam grade bituminous coal” from a 724-
acre area. J.A. 93. To carry out its proposal, Raven Crest was
required to obtain permits under each of four federal regulatory
provisions: the Surface Mining Control and Reclamation Act of
1977 (“SMCRA”), 30 U.S.C. § 1201 et. seq.; and sections 401,
402, and 404 of the Clean Water Act, 33 U.S.C. §§ 1341, 1342,
1344. We review each of these permitting requirements below,
focusing particularly on Raven Crest’s section 404 permit, as
that is the specific permit OVEC has challenged in this case.
A. SMCRA Permit
SMCRA is a federal statute that mandates certain minimum
requirements for state programs that regulate surface mining.
If the state regulatory program meets those requirements, SMCRA
grants that state “exclusive jurisdiction over the regulation of
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surface coal mining and reclamation operations” within the
state’s borders. 30 U.S.C. § 1253. West Virginia’s federally
approved SMCRA program is administered by the West Virginia
Department of Environmental Protection (“WVDEP”).
Anyone wishing to undertake surface coal mining operations
in West Virginia must obtain a SMCRA permit from WVDEP.
Aracoma, 556 F.3d at 189 (citing 30 U.S.C. § 1256(a)). The
SMCRA permit application “must provide detailed information
about possible environmental consequences of the proposed
operations, as well as assurances that damage to the site will
be prevented or minimized during mining and substantially
repaired after mining has come to an end.” Id. at 196; see
30 U.S.C. §§ 1257, 1265.
WVDEP issued a SMCRA permit to Raven Crest on September 3,
2009, authorizing Raven Crest “to engage in surface mining” at
the Boone North mine. J.A. 522.
B. 401 Certification
Section 401 of the Clean Water Act, 33 U.S.C. § 1341,
requires a prospective mine operator to obtain a so-called
“401 certification” from the state in which the mine will be
located “stating that any discharge from the mine site will
comply with all applicable water quality standards.” Aracoma,
556 F.3d at 190. Notably, the Clean Water Act requires that
state water quality standards be submitted to the federal
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Environmental Protection Agency (“EPA”) for approval, and that
they be sufficiently stringent to protect public health. See
33 U.S.C. § 1313(c). Without a 401 certification, no other
“Federal license or permit to conduct any activity . . . which
may result in any discharge” into waters of the United States is
valid. 33 U.S.C. § 1341(a).
WVDEP issued a 401 certification for the Boone North mine
on May 13, 2011, representing that Raven Crest’s proposed
activities would not cause a violation of West Virginia’s
EPA-approved water quality standards. J.A. 524.
C. Section 402 NPDES Permit
Under section 402 of the Clean Water Act, 33 U.S.C. § 1342,
no person may discharge pollutants into the waters of the United
States without a permit issued pursuant to the National
Pollutant Discharge Elimination System (“NPDES”). As with
SMCRA, the Clean Water Act sets up a cooperative-federalism
approach in which states may administer their own NPDES
permitting program so long as the state program meets certain
minimum federal requirements. West Virginia’s NPDES permitting
program is also administered by WVDEP.
Raven Crest’s plan for the Boone North mine involved the
discharge of both treated water and stormwater runoff into
several creeks and tributaries at the Boone North mine. WVDEP
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issued an NPDES permit on May 27, 2009, authorizing those
discharges. J.A. 526.
D. Section 404 Permit
Finally, under section 404 of the Clean Water Act,
33 U.S.C. § 1344, no person may discharge dredged or fill
material into waters of the United States without a permit from
the Corps. Raven Crest’s plan for the Boone North mine involved
“mining through streams,” a process in which stream channels are
“excavated in order to recover coal reserves that lie directly
beneath and adjacent to them,” and then are “backfilled,
regraded to [their approximate original contour] (or higher),
and the affected channels restored.” J.A. 93. Because this
process involves discharging fill material into streams, Raven
Crest needed a section 404 permit from the Corps before it could
proceed. Below, we first provide an overview of the Corps’
permitting process, then recount the specifics of Raven Crest’s
efforts to obtain a section 404 permit for the Boone North mine.
1.
In reviewing a section 404 permit application, the Corps
must ensure that the proposed discharge of fill material will
not cause “‘[s]ignificantly adverse effects’ on human health or
welfare, on aquatic life and other wildlife dependent on aquatic
ecosystems, on aquatic ecosystem diversity, productivity, and
stability, or on recreational, aesthetic, and economic values.”
7
Aracoma, 556 F.3d at 191 (quoting 40 C.F.R. § 230.10(c)). In
addition, the Corps must conduct a “public interest review” for
each permit application through which “[t]he benefits which
reasonably may be expected to accrue from the proposal must be
balanced against its reasonably foreseeable detriments.” Id.
(quoting 33 C.F.R. § 320.4(a)(1)).
Because the Corps is a federal agency, its review of a
section 404 permit application must also comply with NEPA, which
requires agencies to produce an environmental impact statement
(“EIS”) before undertaking any “major Federal action[]
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(C). 2 NEPA’s environmental-review requirements
are procedural, not substantive. Thus, “even agency action with
adverse environmental effects can be NEPA-compliant so long as
the agency has considered those effects and determined that
competing policy values outweigh those costs.” Aracoma,
556 F.3d at 191.
To determine whether an action is a “major” one requiring
an EIS, agencies prepare an Environmental Assessment (“EA”), a
“concise public document” meant to “provide sufficient evidence
and analysis for determining whether to prepare an [EIS] or a
2Although the requirements to obtain SMCRA permits,
401 certifications, and NPDES permits are all based on federal
law, those three permits are issued by state agencies--in this
case, WVDEP--and thus are not subject to NEPA.
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finding of no significant impact.” 40 C.F.R. § 1508.9(a); see
Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581,
584 (4th Cir. 2012). If the EA results in a finding of no
significant impact, the agency need not prepare an EIS.
2.
Raven Crest initiated the section 404 permitting process
for the Boone North mine on October 29, 2009, by submitting a
permit application to the Corps. J.A. 92. After receiving
Raven Crest’s application, the Corps issued a “Public Notice”
summarizing the application and soliciting public comments.
J.A. 134. OVEC submitted a lengthy response letter. In that
letter, it expressed a concern that “[v]arious studies have
shown that coal mining has significant impacts on the health of
those living in the coal fields,” and contended that “[t]hese
impacts must be considered by the Corps during the permitting
process.” J.A. 204. 3
On August 10, 2012, the Corps issued a Permit Evaluation
and Decision Document that included both the section 404–
required “public interest review” and the NEPA-required EA, and
3For example, OVEC quoted one study finding that “[a]dult
hospitalizations for chronic pulmonary disorders and
hypertension are elevated as a function of county-level coal
production, as are rates of mortality; lung cancer; and chronic
heart, lung, and kidney disease.” J.A. 204. It quoted another
that found “cancer clusters . . . correspond[ing] to areas of
high coal mining intensity.” Id.
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ultimately granted Raven Crest’s section 404 permit. The public
interest review portion of the document concluded that issuing
the permit would not be contrary to the public interest. The EA
portion of the document concluded that granting the permit would
“not have a significant impact on the quality of the human
environment,” and that therefore the Corps did not need to
prepare an EIS. J.A. 582–83.
The Corps did not consider the studies OVEC cited in its
comment letter, explaining that the issues those studies raised
regarding the relationship between surface coal mining and
public health “are not within the purview of the Corps’
regulatory authority, but are considered by WVDEP during the
SMCRA permitting process.” J.A. 642.
In response, OVEC brought this action under the
Administrative Procedure Act (“APA”), seeking to set aside the
Corps’ actions. Specifically, OVEC sought suspension or
revocation of Raven Crest’s section 404 permit, claiming that
the Corps’ decision not to consider those studies violated both
NEPA and section 404. 4 Raven Crest intervened to protect its
interest in the permit’s continued validity. In a lengthy
order, the district court granted summary judgment to the Corps
4
OVEC asserted additional claims related to the Boone North
mine’s potential effects on water quality, but those claims have
been settled and are not before us on appeal.
10
and Raven Crest, ruling that the Corps had complied with NEPA
and section 404 in issuing Raven Crest’s permit. OVEC appealed.
II.
Under the APA, a court will set aside an agency action if
it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);
see Defenders of Wildlife v. N.C. Dept. of Transp., 762 F.3d
374, 393 (4th Cir. 2014). “This inquiry must be searching and
careful, but the ultimate standard of review is a narrow one.”
N.C. Wildlife Fed’n v. N.C. Dept. of Transp., 677 F.3d 596, 601
(4th Cir. 2012) (internal quotation marks and citations
omitted). “Deference is due where the agency has examined the
relevant data and provided an explanation of its decision that
includes a rational connection between the facts found and the
choice made.” Aracoma, 556 F.3d at 192 (internal quotation
marks and citation omitted). Although the APA standard requires
deference to the agency’s decision-making, our review of the
district court’s legal conclusions on summary judgment is de
novo. Newport News Holdings Corp. v. Virtual City Vision, Inc.,
650 F.3d 423, 434 (4th Cir. 2011).
We review the merits of OVEC’s arguments below. We begin
with its argument that the Corps acted contrarily to NEPA in
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issuing Raven Crest’s section 404 permit, and then address
OVEC’s argument that the Corps acted contrarily to section 404.
A.
OVEC argues that the Corps violated NEPA by failing to
include in its EA any analysis of the studies OVEC cited as
suggesting a connection between surface coal mining and adverse
public health effects in nearby communities. The Corps responds
that OVEC’s argument is foreclosed by our precedent in Aracoma,
and we agree.
1.
Aracoma, like this case, involved a dispute about the
proper scope of the Corps’ NEPA inquiry for a section 404 permit
associated with a proposed surface coal mine. The mines at
issue in Aracoma involved “valley fills,” a practice in which
excess earth excavated from the mine is disposed of in a manner
that buries an entire valley. 5 To ensure the stability of the
resulting mass, valley fills also typically involve the creation
of an “underdrain system” by placing large boulders in the
streams located beneath the valley fill. Aracoma, 556 F.3d
5Factually, we note that the mines at issue in Aracoma had
a substantially larger environmental footprint than the Boone
North mine in that they involved valley fills, and affected
68,841 linear feet of streams. See 556 F.3d at 187. The Boone
North mine, in contrast, involves no valley fills and affects
only 15,079 linear feet of streams.
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at 186. This constitutes the discharge of fill material into
waters of the United States, necessitating a section 404 permit.
OVEC, which was also the plaintiff in Aracoma, argued that
the Corps “should have considered all environmental impacts
caused by the fills” during its permit review process,
“including the impacts to the upland valleys where the fills
will be located.” Id. at 193. The Corps countered that it had
reasonably interpreted its own regulations to limit the scope of
its review to only the effects of the discharge of fill material
into “the affected waters and adjacent riparian areas.” Id.
We agreed with the Corps. The Corps’ regulations provide
that, in conducting its NEPA analysis, the Corps need address
only “the impacts of the specific activity requiring a
[section 404] permit and those portions of the entire project
over which the district engineer has sufficient control and
responsibility to warrant Federal review.” 33 C.F.R. pt. 325,
app. B, § 7(b)(1). Further, the Corps has “sufficient control
and responsibility” to warrant review of a project as a whole,
rather than just the specific activity requiring a Corps permit,
when “the environmental consequences of the larger project are
essentially products of the Corps permit action.” Id. pt. 326,
app. B., § 7(b)(2). In the case of the valley fills at issue in
Aracoma, we held that the “specific activity” authorized by the
section 404 permit was “nothing more than the filling of
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jurisdictional waters for the purpose of creating an underdrain
system for the larger valley fill,” and that the Corps did not
have sufficient control and responsibility over the entire
valley fill to warrant including the entire project in the scope
of the Corps’ environmental review. Aracoma, 556 F.3d at 194–
95.
In so holding, we reasoned that “[t]o say that the Corps
has a level of control and responsibility over the entire valley
fill project such that ‘the environmental consequences of the
larger project are essentially products of the Corps permit
action,’” would be “to effectively read out of the equation the
elaborate, congressionally mandated schema for the permitting of
surface mining operations prescribed by SMCRA.” Id. at 195
(quoting 33 C.F.R. pt. 325, app. B, § 7(b)(2)). In other words,
because the great bulk of environmental effects associated with
surface coal mining operations in West Virginia are authorized
by WVDEP’s granting of a SMCRA permit, not by the Corps’
granting of a section 404 permit, it would be inappropriate to
require the Corps to review aspects of those projects outside of
the specific dredge-and-fill activities regulated by
section 404.
2.
This case involves a very similar dispute. Here, the Corps
limited its NEPA review to the environmental impacts of the
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dredge-and-fill activities associated with “mining through” the
streams located at the Boone North mine site. OVEC, however,
argues that the Corps’ review should have included consideration
of the environmental impacts of surface coal mining more
generally, and specifically of the studies OVEC cited showing
adverse public health effects in communities near surface coal
mines.
As in Aracoma, however, the activity OVEC seeks to force
the Corps to study--surface coal mining--is neither the
“specific activity” authorized by Raven Crest’s section 404
permit nor an aspect of the Boone North mine over which the
Corps has “sufficient control and responsibility to warrant
Federal review.” See 33 C.F.R. pt. 325, app. B, § 7(b)(1). The
Corps has no jurisdiction to authorize surface coal mining;
SMCRA makes clear that only WVDEP can do that in West Virginia.
The specific activity the Corps authorized was simply the
dredging and filling of certain stream beds at the Boone North
mine. Thus, the reasoning and holding in Aracoma are equally
applicable to this case: the Corps properly limited its NEPA
review to only those environmental impacts associated with the
specific discharge of fill material authorized at the Boone
North mine.
Nevertheless, OVEC seeks to distinguish this case from
Aracoma in two ways, neither of which is persuasive. First,
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OVEC claims that the “specific activity” authorized by the
section 404 permit in this case is not simply the discharge of
fill material into streams, but rather the actual coal mining
that creates the fill material to be discharged. According to
OVEC, the Corps itself “repeatedly described the activity being
permitted as the mine-through of streams on the site to recover
coal reserves.” Appellants’ Br. at 22.
This first proposed distinction fails because it overlooks
the core holding of Aracoma, which is that the Corps’
jurisdiction relates only to fill activities associated with
surface coal mining; the mining itself is regulated exclusively
by WVDEP pursuant to SMCRA. Coal mining cannot be the “specific
activity” authorized by Raven Crest’s section 404 permit,
because the Corps has no jurisdiction to authorize coal mining;
under SMCRA, only WVDEP can do that. In reaching this
conclusion, we are in accordance with the Sixth Circuit which,
in a case that also involved mining through streams, held that
Aracoma “strongly and persuasively support[ed] the Corps’[]
decision to limit its scope of analysis” to include only the
fill activities associated with the mining, and not the mining
itself. Kentuckians for the Commonwealth v. U.S. Army Corps of
Eng’rs, 746 F.3d 698, 710 (6th Cir. 2014).
Second, OVEC argues that Aracoma is inapposite because its
claims in that case “were limited to the Corps’ duty to consider
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water quality impacts of the authorized valley fills and related
mining,” whereas here they relate to human health. Appellants’
Br. at 33. According to OVEC, Aracoma allowed the Corps to
“rely on existing statutory schemes that . . . adequately
address” the water quality concerns, id., but no such statutory
schemes exist to address the impacts of surface coal mining on
human health.
This assertion is simply incorrect. Section 401 of the
Clean Water Act requires a certification by the State of West
Virginia that a proposed mine will not cause a violation of
state water-quality standards, which are developed with human-
health effects in mind. WVDEP issued such a certification here.
Moreover, even if human-health impacts were not considered
elsewhere in the permitting process, Aracoma would not require
the Corps to consider them. OVEC misreads Aracoma as saying
that the Corps must consider any effects of coal mining that are
not sufficiently studied by other agencies. To the contrary, as
we have explained, Aracoma holds that the Corps need not
consider the effects of surface coal mining because the Corps’
issuance of a section 404 permit cannot authorize surface coal
mining; only a SMCRA permit can do that. We therefore conclude
17
that OVEC’s attempts to distinguish Aracoma in this regard are
unavailing. 6
B.
Finally, OVEC argues that two provisions of the Corps’
regulations implementing section 404 require the Corps to
consider the connection between surface coal mining and adverse
public health effects during its permitting process. First,
OVEC cites 40 C.F.R. § 230.10(c), which prohibits the Corps from
issuing a section 404 permit for discharges of fill material
that “will cause or contribute to significant degradation of the
waters of the United States,” including discharges that will
involve “[s]ignificantly adverse effects . . . on human health
or welfare.” Second, OVEC cites 33 C.F.R. § 320.4(a)(1), which
requires the Corps to conduct a “public interest review” that
involves a weighing of “[t]he benefits which reasonably may be
expected to accrue from the proposal . . . against its
reasonably foreseeable detriments.”
6 We also reject OVEC’s argument that the Corps violated
NEPA because it considered the economic benefits of the proposed
mine as a whole, but limited its consideration of environmental
impacts solely to the authorized discharge of fill material.
For this argument, OVEC relies on a Corps regulation requiring
that the scope of NEPA analysis “used for analyzing both impacts
and alternatives should be the same scope of analysis used for
analyzing the benefits of a proposal.” 33 C.F.R. pt. 325, App.
B., § 7(b)(3). But that regulation is inapplicable because the
Corps’ discussion of economic benefits occurred not in its NEPA
analysis, but rather as part of its section 404 “public interest
review.” See J.A. 551.
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These provisions certainly require the Corps to take into
account the public-health effects of a proposed discharge of
fill material before granting a section 404 permit. They do
not, however, create an obligation for the Corps to study the
effects of activities beyond the proposed discharge itself.
Thus, OVEC’s section 404 argument fails for the same reason its
NEPA argument fails: it seeks to require the Corps to study the
effects of surface coal mining, an activity it cannot authorize
and over which, under SMCRA, WVDEP has exclusive jurisdiction.
Accordingly, we also affirm the district court’s holding that
the Corps did not violate the Clean Water Act in granting Raven
Crest’s section 404 permit.
III.
For the reasons stated above, the judgment of the district
court is
AFFIRMED.
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