Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers
963 F. Supp. 2d 670
W.D. Ky.2013Background
- KFTC and Sierra Club challenge the Corps' §404 permit for Leeco to fill streams related to surface coal mining in Kentucky.
- Plaintiffs allege NEPA hard look, CWA §404(b)(1) impacts, and public-interest/assurance issues; seek APA review and injunctive relief.
- Leeco's original 2007 proposal planned multiple hollow fills and sediment ponds discharging into 22,761 feet of streams; a revised 2011 plan reduced impacts and added mitigation.
- An inter-agency MOU (2010) triggered a coordination process with EPA/DOI; EPA raised concerns including NEPA and environmental justice; coordination extended during review.
- The Corps issued a Decision Document in 2012 finding no significant environmental impact and prepared a FONSI; permit issued July 2012; opponents filed cross-motions for summary judgment.
- Court denies plaintiffs' Counts I–IV motions and grants defendants' motions; issues include NEPA scope, 404(b)(1) analysis, public interest review, and mitigation adequacy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of plaintiff organizations | KFTC and Sierra Club have injury-in-fact via nearby mining impacts. | Plaintiffs lack concrete, particularized injuries tied to the challenged permit. | Plaintiffs have standing; injuries are particularized and imminent; traceability and redressability shown. |
| NEPA compliance and scope of analysis | Corps failed to take a hard look; scope too narrow; should consider broader mining effects. | Corps properly limited analysis to waters impacted by the permitted activities under its control; broader mining falls under SMCRA. | Corps' scope and decision to limit NEPA analysis to waters and adjacent riparian areas were not arbitrary or capricious. |
| NEPA supplemental analysis | New August 2012 information required supplemental EA/EA. | No supplemental EA required; information pertained to broader operations outside the Corps' regulatory scope. | No supplemental EA required; information outside the regulated scope did not compel a supplement. |
| CWA §404(b)(1) Guidelines adequacy | Corps failed to consider health studies and cumulative effects; misapplied guidelines. | Analysis focused on discharge impacts from permitted activities; no requirement to assess broader mining impacts. | Corps' §404(b)(1) review was adequate and not arbitrary or capricious. |
| Mitigation adequacy and in-lieu fee use | Mitigation lacks ecological rigor; in-lieu fee timing and distance are insufficiently explained. | Mitigation plan, in-lieu instrument, monitoring, and EKSAP-based calculations are adequate and documented. | Mitigation plan and in-lieu fee approach adequately address ecological function and are not arbitrary or capricious. |
Key Cases Cited
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA requires hard look but is procedural, not outcome-determinative)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (U.S. 1989) (agency may rely on expert opinions; deference to agency expertise)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (U.S. 2000) (injury in fact for environmental plaintiffs includes aesthetic and recreational harms)
- Aracoma Coal Co. v. U.S. Army Corps of Engineers, 556 F.3d 177 (4th Cir. 2009) (overlapping state/federal regimes; NEPA/CWA scope under SMCRA context)
- Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir. 2006) (NEPA scope in context of federal actions; defer to agency path)
- Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008) (agency path reasonably discernible when reviewing less-than-ideal agency reasoning)
- Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (U.S. 1987) (zone of interests guided by relevant statutory provisions, not overall act purpose)
- Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (U.S. 1990) (zone of interests and injury requirements in standing analysis)
- Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105 (9th Cir. 2000) (NEPA scope and agency discretion in environmental reviews)
- Nature of citations herein, Advisory note () (other relied-upon authority referenced in opinion)