Ohio Valley Environmental Coalition v. Bulen

PUBLISHED
Filed: February 15, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OHIO VALLEY ENVIRONMENTAL 
COALITION; COAL RIVER MOUNTAIN
WATCH; NATURAL RESOURCES
DEFENSE COUNCIL,
Plaintiffs-Appellees,
v.
WILLIAM BULEN, District Engineer,
U.S. Army Corps of Engineers,
Huntington District; ROBERT B.
FLOWERS, Lieutenant General, Chief
of Engineers and Commander of the

U.S. Army Corps of Engineers, No. 04-2129(L)
Defendants-Appellants, (CA-03-2281-3)
and
WEST VIRGINIA COAL ASSOCIATION;
KENTUCKY COAL ASSOCIATION; OHIO
COAL ASSOCIATION; COAL
OPERATIONS AND ASSOCIATES,
INCORPORATED; NATIONAL MINING
ASSOCIATION; GREEN VALLEY COAL
COMPANY,
Intervenors-Defendants,
CONSOL OF KENTUCKY, INCORPORATED,
Party in Interest.

2 OHIO VALLEY ENVIRONMENTAL v. BULEN
ORDER
Before the Court is the appellants’ petition for rehearing en banc.
An active judge having called for a poll of the Court on the appel-
lants’ petition for rehearing en banc, such poll has been conducted
and has failed to garner majority support of the active judges. Judges
Michael, Motz, and King voted in favor of rehearing en banc, whereas
Judges Widener, Niemeyer, Luttig, Shedd, and Duncan voted against
rehearing en banc. Chief Judge Wilkins, along with Judges Wilkin-
son, Williams, Traxler, and Gregory, deemed themselves disqualified
and did not participate.
Pursuant to the foregoing, the petition for rehearing en banc is
denied.
Judge King wrote an opinion dissenting from the denial of rehear-
ing en banc, which was joined by Judge Michael and Judge Motz and
is filed herewith.
For the Court
/s/ Patricia S. Connor
Clerk
KING, Circuit Judge, dissenting from the denial of rehearing en banc:
I write separately because, in my view, the Court should hear this
case en banc. En banc consideration is warranted because the decision
of my distinguished colleagues on the court’s panel eviscerates the
important distinction drawn by Congress between individual and gen-
eral permits under section 404 of the Clean Water Act (the "CWA"),
and it undermines the CWA’s primary purpose of protecting the envi-
ronment. As Judge Goodwin aptly explained in his district court opin-
ion, the procedure implemented by the Corps of Engineers "allows an
activity with the potential to have significant effects on the environ-
ment to be permitted without [the] . . . procedural hurdles" attendant
to individual permitting, and it "is prohibited by the plain language,
OHIO VALLEY ENVIRONMENTAL v. BULEN 3
the structure, and the legislative history of the Clean Water Act." See
Ohio Valley Envtl. Coal. v. Bulen, CA-03-2281-3, slip op. at 24 (S.D.
W. Va. July 8, 2004) (citing Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837 (1984)). Moreover, this case is of exceptional
importance, both because of the legal principles involved and the
unnecessary environmental risks occasioned by the Corps’ actions.
See Fed. R. App. P. 36(a)(2) (providing that en banc consideration is
warranted when "the proceeding involves a question of exceptional
importance"). I therefore dissent from the denial of rehearing en banc.
Section 404 of the CWA authorizes the Corps to issue two types
of permits ("individual" and "general") for the discharge of dredged
or fill material into the navigable waters of the United States. Under
section 404(a), the Corps may issue individual permits at specified
disposal sites. As we have recognized, the issuance of a section
404(a) individual permit "requires a resource-intensive review that
entails submission of voluminous application materials, extensive
site-specific research and documentation, promulgation of public
notice, opportunity for public comment, consultation with other fed-
eral agencies, and a formal analysis justifying the ultimate decision
to issue or refuse the permit." Crutchfield v. County of Hanover, 325
F.3d 211, 214 (4th Cir. 2003). Because compliance in every case with
the requirements of section 404(a) imposed a substantial burden on
the Corps, Congress, in 1977, amended the CWA to explicitly autho-
rize the Corps to issue general permits on a state, regional, or nation-
wide basis for discharges associated with categories of similar
activities. See § 404(e). Aware that allowing the Corps to proceed in
a general manner could undermine the CWA’s core goal of protecting
the environment, Congress authorized the Corps to issue a general
permit only if it first "determines that the activities in such category
. . . will cause only minimal adverse environmental effects," both
individually and cumulatively. § 404(e)(1). The corollary, of course,
is that if the Corps is unable to make the required minimal-effects
determination, it is obliged to utilize the more cumbersome proce-
dures mandated by section 404(a), and to issue individual permits
only.
In this case, the Corps failed to make the required determination of
minimal environmental impact before it issued the general permit at
issue. Instead, it set up mechanisms that would work to minimize the
4 OHIO VALLEY ENVIRONMENTAL v. BULEN
environmental effects of specific projects, on a case-by-case basis,
after the general permit issued. To be clear, I agree with the panel
decision that section 404(e) does not bar the Corps from making post-
issuance evaluations to ensure that the permitted activities cause only
minimal adverse effects to the environment. The Corps’ ability to
make such post-issuance evaluations, however, does not relieve it of
the responsibility of making the pre-issuance determination mandated
by section 404(e). The panel has concluded (erroneously, in my view)
that the Corps made the required minimal-effects determination
before it issued the general permit. But other than the Corps’ bald
conclusions that the permitted activities would have minimal environ-
mental impacts, the panel was able to muster from the administrative
record sparingly few examples that even suggest the Corps thought
about potential environmental effects before it issued the general per-
mit. See Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 499-500
(4th Cir. 2005).
Moreover, the panel has ignored the numerous indications that the
Corps deferred its obligation to make minimal-effects determinations
until after the general permit was in place. Because the post-issuance
procedure of the general permit merely parroted section 404(e)’s stan-
dard of review, the Corps could have responded to any pre-issuance
objection to the permit with the assurance that the post-issuance pro-
cedure would take care of the problem. And the record suggests that
the Corps did just that: at the reissuance of the general permit in 2002,
the Corps noted that "[a] majority of the commenters opposed its reis-
suance because of potential [environmental] impacts," but the Corps
responded only by saying that "[t]hese issues will be evaluated during
the case specific minimal effects determination" provided for in the
post-issuance procedure. 67 Fed. Reg. 2020, 2041 (Jan. 15, 2002).
This deferral contravenes section 404(e)’s straightforward expectation
that a meaningful debate about environmental impact will occur
before, rather than after, the Corps issues a general permit.
The defendants assert that the petition for rehearing en banc merely
raises an issue of fact unworthy of en banc review. That characteriza-
tion of the petition, however, ignores the exceptional legal ramifica-
tions of the panel’s decision. As explained above, the primary
distinction between an individual permit (under section 404(a)) and
a general permit (under section 404(e)) is that a general permit
OHIO VALLEY ENVIRONMENTAL v. BULEN 5
requires a pre-issuance determination of minimal environmental
effects. In upholding a general permit for which the Corps failed to
make the required pre-issuance determinations, the panel has effec-
tively rendered section 404(a) a nullity, for if the Corps is not
required to make a pre-issuance minimal-effects determination, it will
inevitably utilize the less burdensome — and more environmentally
risky — permitting procedures of section 404(e).
Finally, this case is of exceptional importance to the nation and, in
particular, to the states in the Appalachian region. See Fed. R. App.
P. 36(a)(2). The Appalachian mountains, the oldest mountain chain in
the world, are one of the nation’s richest, most diverse, and most deli-
cate ecosystems, an ecosystem that the mountaintop coal mining
authorized by the Corps’ general permit may irrevocably damage or
destroy. In enacting the CWA, Congress mandated the protection of
our environment through strict procedural requirements. The panel’s
decision, in authorizing the Corps to skirt the CWA-mandated permit-
ting process, undermines the enactment’s primary purpose and poses
unnecessary risks to one of this nation’s great places. In further sup-
port of this dissent, I adopt Judge Goodwin’s fine opinion for the dis-
trict court. See Ohio Valley Envtl. Coal. v. Bulen, CA-03-2281-3
(S.D. W. Va. July 8, 2004).
I respectfully dissent from the denial of rehearing en banc, and I
am pleased to state that Judge Michael and Judge Motz join in this
opinion.