KENTUCKY RIVERKEEPER, INC. v. Midkiff
800 F. Supp. 2d 846
E.D. Ky.2011Background
- Plaintiffs Kentucky Riverkeeper, Inc., Kentuckians for the Commonwealth, Inc. (KFTC) and Kentucky Waterways Alliance, Inc. challenge the Corps' nationwide permits (NWPs) 21, 49 and 50 governing discharges of dredged or fill material in waters of the United States in the Appalachian mining region under the CWA, NEPA, and APA.
- The Corps issued NWPs 21, 49 and 50 with a finding of minimal environmental effects, incorporating case-by-case mitigation and pre-construction notification (PCN) requirements.
- NWP 21 relates to surface coal mining/discharges processed under SMCRA; NWP 49 relates to remining; NWP 50 relates to underground mining; all require review and mitigation.
- The Corps suspended NWP 21 in the Appalachian region in 2010 but grandfathered pre-suspension authorizations; NWPs 21, 49 and 50 expire March 18, 2012, with a 2011 reissuance/ modification proposal.
- The action is reviewed under the APA for arbitrary and capriciousness; NEPA requires an environmental analysis (EA/ EIS) and a finding of no significant impact with mitigated effects; SMCRA governs state/federal mining permits with mitigation requirements.
- The court ultimately denies plaintiffs’ renewed motion for summary judgment and grants defendants’ and intervenors’ cross-motions, upholding the Corps’ actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs have standing to challenge NWPs 21, 49 and 50 | KFTC and KWA assert injuries to aesthetic/recreational values from mining activities; Riverkeeper lacks current standing | Plaintiffs fail to show site-specific injuries or ongoing effects for NWP 49; standing for 21 and 50 remains | KFTC and KWA have standing for NWPs 21 and 50; Riverkeeper dismissed for lack of standing; no standing for NWP 49 |
| Whether the facial challenge to NWP 21 is moot | Suspension of NWP 21 renders a facial challenge moot | NWP 21 can still affect ongoing or future authorizations and relief can be effective | Facial challenge not moot; relief could affect ongoing/ future authorizations despite suspension |
| Whether the Corps' cumulative impacts analysis under NEPA was arbitrary and capricious for NWPs 21 and 50 | Corps erred by excluding past NWP effects and relied on unsupported mitigation claims | Corps reasonably focused on five-year period and used Mitigation Protocol to assess cumulative impacts | Not arbitrary or capricious; NEPA analysis deemed thorough and supported by record |
| Whether the Corps improperly relied on compensatory mitigation to justify minimal impacts | Mitigation relied upon post-issuance processes without adequate justification | Mitigation plans developed to a reasonable degree; protocols informed by scientific data; MITIGATION adequate | Corps' reliance on compensatory mitigation not arbitrary or capricious under NEPA/CAA |
| Whether the CWA cumulative impacts analysis properly treated past NWP authorizations | CWA requires considering present effects of past actions in cumulative impacts | CWA 404(b)(1) Guidelines contemplate future discharges; past actions not required to be analyzed under CWA Cumulative impacts | CWA analysis did not illegally exclude present effects; proper scope under 40 C.F.R. §230.11(g) |
Key Cases Cited
- United States v. Salerno, 481 U.S. 739 (U.S. 1987) (facial challenges require no set of circumstances; standard applied to challenged permit)
- Reno v. Flores, 507 U.S. 292 (U.S. 1993) (Salerno applies to statutory challenges as well as constitutional)
- Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary-and-capricious review requires a rational connection between facts and action)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA is procedural; agency must take hard look at environmental consequences)
- Lujan v. National Wildlife Federation, 497 U.S. 871 (U.S. 1990) (standing requires Injury in fact, traceability, redressability; site-specific interests)
- Sierra Club v. Mainella, 459 F.Supp.2d 76 (D.D.C. 2006) (APA review of agency action under arbitrary and capricious standard)
- Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (mitigation can support a FONSI; NEPA mitigation analysis proper)
- Tillamook County v. U.S. Army Corps of Eng'rs, 288 F.3d 1140 (9th Cir. 2002) (NEPA mitigation and thresholds in environmental impact analyses)
- Spiller v. White, 352 F.3d 235 (5th Cir. 2003) (mitigation can render impacts minimal for NEPA findings)
- C.A.R.E. Now, Inc. v. Federal Aviation Admin., 844 F.2d 1569 (11th Cir. 1988) (NEPA mitigation requirements may be developed post-issuance)
- cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678 (D.C. Cir. 1982) (mitigation and NEPA considerations in environmental planning)