Copenhaver moves state's mountaintop mining case to D.C.

By Steve Korris | Feb 3, 2011


CHARLESTON -- For the sake of "certainty and finality in the coalfields," U.S. District Judge John Copenhaver decided that West Virginia's challenge to new federal rules for mountaintop mining belongs in federal court at Washington.

On Jan. 31, he transferred the state's suit against the Environmental Protection Agency to U.S. District Judge Reggie Walton in the District of Columbia.

Walton will consolidate the suit with one the National Mining Association brought against EPA over new procedures for mines seeking water quality permits.

Two other suits remain pending in Kentucky federal court, and EPA seeks to transfer both to Walton.

Copenhaver found it unlikely that three judges would decide four cases in the same manner and on the same grounds.

Even if the judges reached the same decisions, he wrote, the timing might differ due to different filing dates, scheduling orders and procedural issues.

"Many of these concerns can be alleviated by a single district judge consolidating the cases, or at least coordinating them in some methodical fashion," he wrote.

He wrote that the regulations affect six states in four appellate court circuits, offering another opportunity for disharmony.

"It is difficult to comprehend the problems that might arise from the federal and state regulators, the industry, and potentially the citizenry and the markets, if different rules are deemed to apply in different circuits," he wrote.

"It is also worth noting the peculiar expertise in administrative law possessed by both the D. C. district court and the United States Court of Appeals for the District of Columbia circuit."

West Virginia opposed transfer, arguing it would prevent the state from litigating within its own borders a controversy involving its policies and standards.

Copenhaver wrote that the state's choice of forum carried some weight, but he found "very substantial considerations in counter balance."

"They involve economy, the integrity of the judicial process, and the need for certainty and finality in the coalfields," he wrote.

All four suits challenge a new process for issuing water quality permits.

Mine owners must obtain permits under Section 404 of the Clean Water Act from the U.S. Army Corps of Engineers, showing they can limit discharges of pollutants.

To obtain permits for mountaintop mining, owners must show they can deposit fill in valleys without polluting water.

In January 2009, EPA questioned the legality of pending permits in letters to the Corps.

Next, EPA announced it would subject some permits to "enhanced coordination."

EPA identified 79 coal related permits that qualified for enhanced coordination.

Last April, EPA established regional standards not only for Section 404 permits but also for Section 402 permits, which states issue to regulate discharges of pollutants.

The mining association sued EPA administrator Lisa Jackson, seeking an injunction that would invalidate the rules.

Jackson moved to dismiss, arguing the association couldn't sue because EPA hadn't taken final action.

She argued the association lacked standing because it showed no injury.

Walton denied an injunction on Jan. 14, finding the association's members showed harm in the past but not in the future.

He denied the motion to dismiss, however, finding it possible for an agency to take final action in a permit process prior to determining whether to grant or deny a permit.

He wrote that EPA clearly implemented a change in the permit process.

He wrote that enhanced coordination imposed unequivocal requirements.

He wrote that EPA applied rules in a binding manner and implemented them even though it continues to receive comments.

He granted standing to the association, finding support for allegations of notice and comment violations and allegations of illegal process.

The new rules affect mines in West Virginia, Ohio, Pennsylvania, Tennessee, Virginia, and Kentucky.

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