Two late April decisions by the U.S. Court of Appeals for the District of Columbia and the Sixth Circuit upheld challenges to permits issued by the U.S. Army Corps of Engineers (Corps) under the auspices of Section 404 of the Clean Water Act. The first case, Mingo Logan Coal Company v. U.S. Environmental Protection Agency, No. 12-5150 (April 23, 2013), the Court of Appeals for the District Court of Columbia upheld an Environmental Protection Agency (EPA) decision to veto, in part, a Corps permit to discharge mountain-top coal material into three rivers, even though the permit was final and issued four years earlier. The appellate panel held that the Clean Water Act empowered EPA to exercise its veto authority at any time, even after issuance of a Corps permit. A copy of the opinion can be found here.
In the second case, Kentucky Riverkeeper, Inc. v. Rowlette, No. 11-6083 (April 22, 2013), the Sixth Circuit invalidated nationwide permit 21, authorizing surface coal-mining operations, as arbitrary and capricious under the federal Administrative Procedure Act. Although already superseded by a new permit authorized in 2012, a number of existing operations were grandfathered under the 2007 nationwide permit 21. Environmental organizations challenged the permit alleging that the Corps failed to consider the present effects of past permit authorizations and properly explain how compensatory mitigation would ensure cumulatively minimal impacts in its environmental assessment conducted per the National Environmental Policy Act (NEPA). The court found that the Corps considered past mining impacts to forecast future impacts, but did not use the present effects of the past impacts to assess the cumulative effect of future impacts. In other words, the Corps excluded the present effects of past actions from its cumulative impact analysis. Additionally, the court found that the Corps failed to offer any documentation supporting its assertion that its post-permit compensatory mitigation requirements demonstrated that the issuance of the nationwide permit 21 would have no more than minimal cumulative effects. Consequently, the court remanded the case, but stayed its decision for 60 days to allow the parties and the lower court to assess the ramifications of the ruling on existing projects and potential remedies. A copy of the opinion can be found here.