Read updates in Coal Tattoo

In another blow to mountaintop removal, a federal judge on Tuesday blocked federal regulators from approving new valley fills permits through a streamlined review process until government agencies study the impacts of proposed mining in more detail.

U.S. District Judge Joseph R. Goodwin issued an injunction that blocks the U.S. Army Corps of Engineers from authorizing new mining projects through the agency's "nationwide permit" procedure.

In a long-awaited decision, Goodwin ruled that corps officials were wrong to conclude that mining authorized by the streamlined permit would have only minimal cumulative environmental impacts, and faulted the agency for not preparing a detailed study of the potential effects of mining.

"These valley fills permanently eliminate previously existing valley streams," Goodwin wrote in a 63-page opinion. "In the past twenty years, thousands of miles of streams in Appalachia, constituting over 2 percent of the streams in the area, have been impacted by the discharges associated with mountaintop mining."

A week after the Obama administration announced a more detailed review of mountaintop removal permits, Goodwin ruled in a case that had been awaiting a decision since August 2007.

It was not immediately clear how the ruling might affect active operations, but the decision puts more pressure on Obama, the corps and the U.S. Environmental Protection Agency to work out its plans for dealing with mountaintop removal.

"Judge Goodwin, I think, properly observed that the corps has not been complying with the law," said lawyer Joe Lovett, director of the Appalachian Center for the Economy and the Environment. "I hope with the new Obama administration the corps was already in the process of changing its behavior, and I hope this will help it along."

Under court rules, corps lawyers at the Department of Justice have 60 days to decide if they will appeal Goodwin's decision to the 4th U.S. Circuit Court of Appeals in Richmond, Va.

"We are reviewing the decision and no decision has been made as to the government's next action in the matter," said Andrew Ames, a Justice Department spokesman.

The case differs from the one in front of U.S. District Judge Robert C. Chambers. Chambers ruled on - and was later overturned by the 4th Circuit - whether the corps had properly studied the potential impacts of "individual" clean water act permits for mountaintop removal mines.

Goodwin was reviewing, in a suit brought by the Ohio Valley Environmental Coalition and other groups, the corps' previously typical practice of using the more streamlined "nationwide permit" process for valley fills.

Read updates in Coal Tattoo

In another blow to mountaintop removal, a federal judge on Tuesday blocked federal regulators from approving new valley fills permits through a streamlined review process until government agencies study the impacts of proposed mining in more detail.

U.S. District Judge Joseph R. Goodwin issued an injunction that blocks the U.S. Army Corps of Engineers from authorizing new mining projects through the agency's "nationwide permit" procedure.

In a long-awaited decision, Goodwin ruled that corps officials were wrong to conclude that mining authorized by the streamlined permit would have only minimal cumulative environmental impacts, and faulted the agency for not preparing a detailed study of the potential effects of mining.

"These valley fills permanently eliminate previously existing valley streams," Goodwin wrote in a 63-page opinion. "In the past twenty years, thousands of miles of streams in Appalachia, constituting over 2 percent of the streams in the area, have been impacted by the discharges associated with mountaintop mining."

A week after the Obama administration announced a more detailed review of mountaintop removal permits, Goodwin ruled in a case that had been awaiting a decision since August 2007.

It was not immediately clear how the ruling might affect active operations, but the decision puts more pressure on Obama, the corps and the U.S. Environmental Protection Agency to work out its plans for dealing with mountaintop removal.

"Judge Goodwin, I think, properly observed that the corps has not been complying with the law," said lawyer Joe Lovett, director of the Appalachian Center for the Economy and the Environment. "I hope with the new Obama administration the corps was already in the process of changing its behavior, and I hope this will help it along."

Under court rules, corps lawyers at the Department of Justice have 60 days to decide if they will appeal Goodwin's decision to the 4th U.S. Circuit Court of Appeals in Richmond, Va.

"We are reviewing the decision and no decision has been made as to the government's next action in the matter," said Andrew Ames, a Justice Department spokesman.

The case differs from the one in front of U.S. District Judge Robert C. Chambers. Chambers ruled on - and was later overturned by the 4th Circuit - whether the corps had properly studied the potential impacts of "individual" clean water act permits for mountaintop removal mines.

Goodwin was reviewing, in a suit brought by the Ohio Valley Environmental Coalition and other groups, the corps' previously typical practice of using the more streamlined "nationwide permit" process for valley fills.

Under Clean Water Act rules, nationwide or "general" permits are supposed to be used to authorize "minor activities that are usually not controversial" and that would have only "minimal cumulative adverse effects on the environment."

In this process, the corps issues a permit with a standard set of environmental guidelines. Applicants are then authorized under this permit if they submit a general pledge to follow those guidelines. For years, the corps approved valley fills - burying hundreds of miles of Appalachian streams - using these streamlined permit reviews.

Then, in July 2004, Goodwin ruled that on its face, the "nationwide permit" program could not be used to approve valley fill, because the corps had not determined before issuing the permit that the mining activity allowed would cause only minimal impact.

The 4th Circuit overturned that decision, ruling that it was acceptable for the corps to make that "minimal effects" finding after the nationwide permit was issued. But the appeals court left open the possibility that environmental groups could go back to Goodwin and argue that the substance of the after-the-fact corps determination was "arbitrary and capricious."

Environmental group lawyers did just that, and Goodwin on Tuesday ruled in their favor on several key points.

First, the judge ruled that the corps did not consider "the continuing impacts of past" permit approvals "which is a relevant factor for a cumulative impacts analysis." Second, Goodwin found that the corps failed to "explain and provide a rational explanation" for its conclusion that "compensatory mitigation" will attenuate cumulative impacts."

Since Goodwin's initial ruling in July 2004, the coal industry has more frequently been using individual permits than the streamlined process, said Carol Raulston, spokeswoman for the National Mining Association.

Since Jan. 1, the corps' Huntington District has issued at least three nationwide permit authorizations for surface mining activities, according to agency records.

Goodwin's ruling and injunction apply only within the boundaries of the U.S. District Court's Southern District of West Virginia.

But within the district, the judge not only enjoined the corps from authorizing new mines under the streamlined process, but also blocked mine operators who intervened in the case "from all activities authorized" under the streamlined permit process.

Bill Raney, president of the West Virginia Coal Association, criticized the ruling as another threat to mining jobs in the region. But Raney also said he would be surprised if the agencies involved or a judge use Goodwin's decision to stop further mining at an operation where part of a stream has already been buried under a nationwide permit authorization.

"I certainly hope that's the case, that those who are working are going to be allowed to do so and keep working," Raney said.

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.