Kentuckians for the Commonwealth v. United States Army Corps of Engineers
746 F.3d 698
| 6th Cir. | 2014Background
- Sixth Circuit reviews district court ruling upholding Corps §404 permit for Leeco, Inc. in Perry County, KY under SMCRA and CWA/NEPA framework.
- Kentucky regulates surface mining via state permit; Corps issues §404 permit for discharge into waters; NEPA requires a hard look at environmental consequences.
- Leeco revised its plan in 2011 to reduce stream impacts and include compensatory mitigation; EPA approved the revised plan.
- Interagency Action Plan (2009) prompted EPA review; EPA initially raised concerns about health impacts and mitigation, later approved plan.
- District court granted summary judgment for the Corps; plaintiffs appealed challenging NEPA scope and mitigation analysis under CWA/NEPA.
- Court emphasizes SMCRA’s state primacy, with federal oversight limited to Corps-permitted activity and nearby waters.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA scope of review for §404 permit | Kentuckians argues broader NEPA review should cover health impacts of mining | Corps limited review to effects of the permitted discharge into jurisdictional waters | NEPA scope correctly limited to discharge-related effects |
| HEALTH effects consideration under NEPA | Plaintiffs contend must assess general mining health impacts | Corps analyzed proximate health effects (water/air) linked to the permit | Court upholds limited health-effect analysis as reasonable |
| Mitigation plan under Clean Water Act §404(b)(1) | Challenge to mitigation assessment methodology and specific figures | Corps used EKSAP and expert judgment; plan not arbitrary or capricious | Mitigation plan approved; not arbitrary or capricious |
| Regulatory scope balance with SMCRA | State program should not be overridden by federal NEPA review across entire project | NEPA review limited by Corps regulations to permit activities | Corps’ scope consistent with congressional design of state-led surface mining regulation |
Key Cases Cited
- Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (NEPA scope and SMCRA interplay; state primacy in mining regulation)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA is procedural; require hard look but not substantive results)
- Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir. 2006) (NEPA analysis flexibility; scope tied to agency discretion)
- Public Citizen v. Dep’t of Transp., 541 U.S. 752 (2004) (Contextual, rule-of-reason approach to NEPA scope and interests)
- Sierra Club v. Siegler, 695 F.2d 957 (5th Cir. 1983) (early guidance on NEPA scope and agency decision making)