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After
my post on judicial restraint – and the lack thereof
– in
Texas v. EPA, the opinion issued last week by Judge Robert
Chambers, in
Ohio Valley Environmental Coalition v. United States Army Corps of
Engineers, affirming the Corps' § 404 permit for
Highland Mining's Reylas Surface Mine, seemed particularly
notable. I cannot recall of similar example of a judge who was
almost visibly restraining himself, issuing a decision that he
plainly did not want to issue, for one reason: because he
thought that the proper application of the law dictated the result,
however distasteful to him personally. It is true that the
4th Circuit Court of Appeals had previously reversed
Judge Chambers in a similar case, Ohio Valley Environmental Coalition v. Aracoma Coal
Company, but not all judges would take such a rebuke so to
heart.
The first issue in the case was whether the "Compensatory
Mitigation Plan" was sufficient, notwithstanding
plaintiffs' allegations that the plan did not guarantee
replacement of all stream functions and values. Judge Chambers
stated that he "remains extremely skeptical about the
viability of stream creation on which this and other permits rely
heavily," but noted that "the Fourth Circuit has
expressly approved of the Corps' use of steam creation as a
mitigation measure." Moreover,
The Fourth Circuit has explained that "in matters involving
complex predictions based on special expertise, a reviewing court
must generally be at its most deferential." Based on this
deference, and the narrow review prescribed by the APA, the Court
cannot conclude that the Corps' reliance on stream creation of
the adoption of the CMP was arbitrary and capricious.
The second issue in the case was whether the Corps' decision
not to prepare an Environmental Impact Statement violated
NEPA. Here, Judge Chambers' restraint is even more
notable.
The Court is thoroughly convinced that large scale surface
mining is strongly correlated with elevated levels of conductivity
and the loss of sensitive macroinvertebrates downstream of valley
fills. This conclusion however, is not enough to vacate the
Corps' decision on the Reylas permit.
***
The Corps' conclusion that the cumulative impacts of this
project will be insignificant is very troubling.... However,
even where the science is clear ... that surface mining activities
are strongly correlated with increases in conductivity and
declining biodiversity, judicial review of the corps' decision
is narrow. The concerns raised by Plaintiffs and the EPA are
exclusively water quality concerns. In the complicated
regulatory scheme governing surface mining operations, the Corps
does not have primary responsibility for water quality. Under
the Clean Water Act, that responsibility lies with
WVDEP.... It is not unreasonable for the corps to rely on the
expertise of the WVDEP....
As a final note, I feel compelled to point out that this model
of judicial restraint was appointed to the bench by Bill
Clinton. I'll let you do your own research regarding who
appointed the majority members of the panel in Texas v.
EPA.
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