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Appeals court rejects coal permitting process

Apr. 23, 2013 @ 12:00 AM

LOUISVILLE, Ky. -- Environmental groups cheered a 6th U.S. Circuit Court of Appeals ruling Monday that invalidates a streamlined permitting process for surface mines.

The ruling reverses a lower court's ruling in eastern Kentucky that upheld the nationwide permitting process adopted by the Army Corps of Engineers in 2007.

The appeals court called the permitting process "arbitrary and capricious" in a 16-page ruling.

The nationwide permit, known as NWP 21, "was an ill-conceived permit that allowed mountaintop removal mining to pollute our rivers and streams while doing nothing to protect people or the waterways they rely on," Mary Anne Hitt, director of the Sierra Club's campaign against coal, said in a statement Monday.

The streamlined process was viewed as less burdensome for coal operators and included approvals for a much-maligned form of surface mining in Appalachia called mountaintop removal, in which earth and rock are blasted and pushed into valleys.

Environmental groups have argued that the mining method defaces the landscape and sends toxic substances into the waterways, endangering human health.

"This permit should never have been issued, because it was based on the Corps' unsupportable assumption that filling these streams has minimal environmental effects," said Jim Hecker, environmental enforcement director with Public Justice in Washington.

Bill Bissett, president of the Kentucky Coal Association, said the ruling will have a minimal impact since the nationwide permit expired last year. The Corps extended the permits until 2013 for projects started before the expiration, which includes about 70 projects.

Bissett said it would "have no impact on the issuance of future permits."

The appeals court said the Corps of Engineers failed to properly assess the impact on the environment as required by the Clean Water Act and the National Environmental Policy Act.

"Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards," according to the ruling.

The original case in federal court in Pikeville was brought by Kentucky Riverkeeper, Kentuckians for the Commonwealth and the Kentucky Waterways Alliance.

The appeals court granted a 60-day stay on the ruling to allow the parties to assess the impact on current projects.

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