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This news story originally provided by The Charleston Gazette
U.S. District Judge Joseph R. Goodwin on Tuesday declined to
clarify his July ruling on mountaintop removal coal mining.
But in an 11-page order issued Tuesday, Goodwin also cautioned
the U.S. Army Corps of Engineers to properly enforce that ruling.
“I trust that the corps will enforce my unambiguous orders,” the
judge wrote.
Goodwin also declined a coal industry request to reconsider his
decision and turned down an effort by one company, CONSOL of
Kentucky, to intervene in the case.
The judge ruled in on a series of motions filed by both sides, in
some cases without allowing lawyers to respond to the other
parties’ legal argument.
In his original July 8 decision, Goodwin said the corps could no
longer approve mining valley fills through a streamlined permit
process meant only for activities that cause minor environmental
damage.
Rather than these “general” or “nationwide” permits,
Goodwin said, coal companies must go through individual permit
reviews when they propose to bury streams with waste dirt and rock.
The judge ordered the corps not to issue new Clean Water Act
permits for valley fills in Southern West Virginia without
individual reviews. He ordered the agency to suspend permits for
valley fills “on which construction has not commenced as of today,
July 8, 2004.”
Since the ruling, though, some coal industry officials —
including Massey Energy President Don Blankenship — have argued
that the order does not apply to sites where preparatory work —
such as building sediment ponds at the foot of valley fill sites —
has begun.
Last week, the Ohio Valley Environmental Coalition alleged in
court papers that the corps was allowing coal operators to violate
Goodwin’s ruling.
Joe Lovett, a lawyer for the coalition, asked Goodwin to clarify
his ruling because “coal operators may be acting unilaterally to
fill streams in accordance with their self-interested and improper
interpretation of the court’s order.”
In Tuesday’s order, Goodwin said that he saw no reason to
clarify his previous decision.
But, the judge also wrote that, “I will merely remark that the
corps, as the administrative agency authorized by Congress to
regulate discharges of dredged and fill material into the waters of
the United States, is entirely capable of carrying out my
unambiguous orders.
“Construction on particular valley fills and surface
impoundments had either begun by July 8, 2004, or it had not,”
Goodwin wrote.
The judge added that, “if the corps’ workload will increase
significantly as coal operators seek individual permits, that
problem is best solved by the executive branch of government.
“The corps might reduce the delay to coal operators by, for
example, devoting more resources and personnel to the review of
individual permit applications,” Goodwin wrote. “However, the
corps chooses to address the problem, I cannot allow projects to
proceed under [general permits] when the Clean Water Act clearly
requires a greater degree of scrutiny than those projects have yet
received.”
In refusing CONSOL of Kentucky’s request, made last week, to
intervene in the case, Goodwin said that the company waited too long
to seek to intervene.
Goodwin also rejected a request by various coal industry groups
that the judge reconsider an Aug. 13 order that broadened his
original decision to apply to any valley fills that had not started
prior to July 8.
In a motion filed Friday, coal industry lawyer Bob McLusky had
complained that the Aug. 13 order’s “retroactive effect will
have a significant and inequitable impact on the mining industry in
West Virginia.
“By forcing many dozen operators simultaneously to seek
individual permits, the court has practically guaranteed that the
corps’ administrators will be unable to process applications for
individual permits in a timely manner, thereby forcing the closure
of some operations,” McLusky wrote.
McLusky added that Goodwin “has — perhaps unintentionally —
unfairly visited the threat of economic ruin on many coal operators
who have expended millions of dollars on equipment and leases in
reliance on their corps authorizations.”
In response, Goodwin said he found it “necessary to emphasize
for the third time now” that the general permit used by the corps
“is unlawful.”
“It is true that [general permit] holders were operating
pursuant to what they thought were lawful authorizations, but [the
general permit] itself was never lawful,” the judge wrote.
Goodwin wrote he could have ordered suspensions of all corps
general permits for coal mining operations, but that he “limited
the injunction in this case to the Southern District of West
Virginia” to comply with a 2003 ruling by the 4th U.S. District
Court of Appeals.
“As of July 8, 2004, anyone with an interest in coal mining in
the Southern District of West Virginia was on notice that [the
general permit] does not comply with the Clean Water Act and that
the corps was ordered to suspend [general permit] authorizations,”
Goodwin wrote.
“The exception I made for particular projects on which
construction had begun by that date was merely that — an
exception,” he wrote. “Proponents of other projects may now
apply for individual permits.”
The Bush administration has not announced whether it will appeal
the ruling on behalf of the corps.
Goodwin’s ruling is available online at www.wvsd.uscourts.gov/district/opinions/.
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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