SAVE OUR CUMBERLAND MOUNTAINS, Appalachian Voices, The Sierra Club and Southern Appalachian Biodiversity Project, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the United States Department of the Interior, in his official capacity; Jeffrey Jarrett, Director of the United States Office of Surface Mining Reclamation and Enforcement, in his official capacity; and Tim Dieringer, Director of the Knoxville Field Office of Surface Mining Reclamation and Enforcement, in his official capacity, Defendants-Appellees, National Coal Corporation, Intervenor-Defendant-Appellee.
No. 05-5663.
United States Court of Appeals, Sixth Circuit.
Argued: March 6, 2006. Decided and Filed: June 29, 2006.
457 F.3d 575
OPINION
SUTTON, Circuit Judge.
Four environmental groups filed this action contending that the Office of Surface Mining and Reclamation, an office of the Department of the Interior, abused its discretion (1) in conducting an environmental assessment of an application by the National Coal Corporation to mine roughly 1,100 acres in the Cumberland River watershed of northeastern Tennessee and (2) in issuing a finding of no significant environmental impact with respect to the application. Among other things, plaintiffs argued that the agency‘s environmental assessment did not take a sufficiently “hard look” at the consequences of the application, see Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 322, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975), as mandated by the
While we affirm, we express one caveat in doing so. Throughout the environmental-assessment process and throughout this litigation, the Office of Surface Mining has taken the position that it need only consider three alternatives to the mining application—grant the license, deny the license or take no action. That approach, in our view, unduly circumscribes the scope of alternatives that the statute and regulations require federal agencies to consider. Nonetheless, because the administrative record shows that the agency in effect did consider other options to the coal company‘s license request (primarily modifications to the application that would diminish the environmental consequences of the mining) and because plaintiffs on appeal have not identified any concrete alternatives that the agency should have considered (but did not), we affirm.
I.
On June 28, 2002, the National Coal Corporation applied to the Office of Surface Mining for a permit to conduct contour cross-ridge[] and auger coal mining operations on Zeb Mountain in Campbell and Scott Counties, Tennessee.” D. Ct. Op. at 2. Commonly known as strip mining, cross-ridge mining removes surrounding rock with explosives to expose a seam of coal, which permits miners to excavate the coal with heavy mining equipment (and often with the use of additional explosives). Once a mining company has removed the surrounding rock, it also can remove the coal through auger mining, which accesses the coal with a large drill.
The coal company sought a permit to mine and build support structures on 1,148.7 acres of a 2,107 acre area. According to its application, the mining project would last about ten years and in the end would return all but a small portion of the
As a result of this discourse and as a result of its own inquiry, the Office of Surface Mining issued seven notices of deficiency to the coal company. In response, the company revised and republished its proposed mining plan several times, making changes that affected nearly all areas of interest under the National Environmental Policy Act, including providing (1) greater protection for various animal species threatened by the mining, (2) improved contingencies for the treatment of potentially contaminated water, (3) a revised drainage-control plan, (4) a revised topsoil-handling plan, (5) improved land-reclamation standards, (6) a revised revegetation plan that included the use of hardwood trees, (7) a plan to reestablish the habitats of certain at-risk species and (8) a plan to protect local residents from the noise and dust caused by blasting.
The agency also conducted an environmental assessment of the plan, which examined the effects of the proposed mining on topography, geology, soils, vegetation, land use, aesthetics, hydrology, fish and wildlife, cultural and historic resources, air quality and socioeconomics. On June 30, 2003, the agency published this environmental assessment as well as a finding of no significant impact, and—upon the posting by the coal company of a $3.8 million bond designed to ensure that it meets its reclamation responsibilities—issued a permit for the company to begin mining.
On September 4, 2003, four environmental groups—Save Our Cumberland Mountains, Appalachian Voices, the Sierra Club and the Southern Appalachian Biodiversity Project—filed this lawsuit. They moved for a preliminary injunction, arguing that the federal agency had failed to comply with the National Environmental Policy Act because it drafted an incomplete environmental assessment and arbitrarily issued a finding of no significant impact. The district court denied the requested injunction on October 31, 2003, after which it granted the motion of the coal company to intervene as a defendant in the case. On February 23, 2005, the court granted the agency‘s motion for summary judgment, concluding that plaintiffs had failed to show that the agency‘s environmental assessment and its decision to issue a finding of no significant impact were “arbitrary, capricious or [abuses] of discretion.” D. Ct. Op. at 21.
II.
Congress enacted the National Environmental Policy Act “[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his
- the environmental impact of the proposed action,
- any adverse environmental effects which cannot be avoided should the proposal be implemented,
- alternatives to the proposed action,
- the relationship between local short-term uses of man‘s environment and the maintenance and enhancement of long-term productivity, and
- any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
As suggested by the requirements of this “detailed statement“—what the regulations refer to as an “environmental impact statement,”
In integrating environmental considerations into agency deliberations, § 102 requires an affected federal agency (here the Office of Surface Mining) to prepare an environmental impact statement whenever two things are true: (1) there has been a “proposal[] for legislation and other major Federal actions,” and (2) the proposal would “significantly affect[] the quality of the human environment.” No one questions that “major Federal action[]” exists here, as the Office of Surface Mining has responsibility under the Surface Mining Control and Reclamation Act for approving applications to mine coal in this country.
The point of debate is whether this mining proposal would “significantly affect[] the quality of the human environment.” In providing guidance to agencies about when they should prepare an environmental impact statement, the implementing regulations, promulgated by the Council on Environmental Quality, say that the agency should ask whether the proposal is one that “[n]ormally requires an environmental impact statement,”
An environmental assessment
(a) Means a concise public document for which a Federal agency is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.
(2) Aid an agency‘s compliance with the Act when no environmental impact statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.
When faced with a lawsuit under the National Environmental Policy Act, a federal court has authority to review the agency‘s action under the
At 40 pages in length, the environmental assessment satisfies most of these regulatory requirements. It contains a brief
In considering the environmental consequences of the plan, the agency consulted numerous studies of similar mining operations in other Appalachian mountain regions. See, e.g., JA 531 (referencing a report on soil redevelopment in a West Virginia coal mine site in 2001); JA 532 (referencing a 2002 Tennessee Valley Authority draft environmental assessment for nearby Braden Mountain concerning measures to ease the reintroduction of wildlife to the mining site); JA 534 (referencing a 1981 report regarding reclaimed mines on nearby Brushy and Walnut Mountains and concluding that post-mining reclamation will minimize any impact on wildlife); id. (referencing a 2001 study indicating that mining causes greater disturbances to salamander populations than clearcutting); JA 540 (referencing a West Virginia University study concluding that emissions from similar mining operations posed little health risk); JA 541 (referencing a previous Office of Surface Mining environmental impact statement to establish the likely impact area of wind-blown dust); id. (using an environmental study on surface mining to determine the likely effect of air-quality changes on residents); JA 545-46 (using an Office of Surface Mining environmental impact statement to determine the likely threat to local residents from blasting operations). The agency also consulted studies assessing the specific effects of this mining operation. See, e.g., JA 535 (referencing the cumulative hydrological impact assessments performed by the Office of Surface Mining to evaluate the effects of the proposed mining on area water supplies). And, finally, the agency considered the 1985 environmental impact statement that it had completed in approving Tennessee‘s plan for overseeing surface coal mining operations and reclaiming abandoned mining areas under the
The report acknowledges that the mining will have several short-term effects: the disruption of “(1) land use, (2) wildlife/wildlife habitat, (3) aquatic species/habitats, (4) air quality, (5) soils, (6) postmining vegetation cover, and (7) aesthetics.” JA 517. But it explains that the plan‘s reclamation and mitigation efforts will diminish, if not entirely remediate, most of these problems over the long run. See, e.g., JA 534-35 (noting that although mining initially will drive certain animal species out of the area, “the large amounts of similar habitat adjacent to the project area” mean that the impact on “terrestrial wildlife in the region would be temporary and [is] unlikely to have adverse impacts on the wildlife population as a whole in [the] area,” and “the subsequent incremental reclamation of the disturbed areas would reduce impacts to local populations of wildlife“); JA 531 (“[I]n the short term, disturbance to soils will be complete but mitigated to a large extent by the salvaging and redistribution of soil growth medium .... [Studies] confirm[] that development of soils and soil profiles more similar to the native soils is likely to occur over a period of years following completion of mining.“); JA 531-32 (noting that much of the local vegetation will be removed during mining but thereafter will be replaced with native vegetation, restoring an area substantially diminished by previous mining and logging).
Long-term impacts from a mining operation are another matter, though they do not invariably doom a mining proposal or, as here, compel the issuance of an environmental impact statement. In its report, the agency acknowledged four long-term consequences of the proposed mining operation: “(1) alterations of topography, (2) additional alteration of the geologic strata, (3) increased infiltration rates through the backfilled material, and (4) permanent retention of roads and sediment basins.” JA 530. The “proper implementation of the proposed operation and reclamation plan,” it concluded, would “prevent or minimize the adverse effects that may occur from the permanent changes.”
Plaintiffs challenge these conclusions on three grounds: (1) the agency prepared a deficient environmental assessment because it failed to consider sufficient alternatives to the proposal; (2) the agency acted arbitrarily and capriciously in issuing a finding of no significant impact instead of requiring an environmental impact statement; and (3) the agency should have made the environmental assessment available for public comment 30 days before its final decision.
First, plaintiffs point out that the agency considered just three alternatives in preparing the environmental assessment—grant the license, deny the license or take “no action.” In failing to consider other alternatives, plaintiffs claim, the agency breached the regulatory requirement that an environmental assessment contain a “brief discussion[] of ... alternatives ... [and] the environmental impacts of [those] ... alternatives.”
As a general matter, “the range of alternatives that must be discussed” under the National Environmental Policy Act “is a matter within an agency‘s discretion.” Friends of Ompompanoosuc v. Fed. Energy Regulatory Comm‘n, 968 F.2d 1549, 1558 (2d Cir. 1992); see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 551-52, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C. Cir. 1991). In exercising that discretion, the agency should consider the purpose of the project, see Citizens Against Burlington, Inc., 938 F.2d at 195, and the environmental consequences of the project.
As to the latter consideration, an agency has fewer reasons to consider alternatives when it prepares an environmental assessment as opposed to when it prepares an environmental impact statement. For in permissibly preparing an environmental assessment alone, the agency has determined that the proposed project will have minimal environmental consequences, and accordingly its duty to consider environment-friendly alternatives is less pressing than when it issues an environmental impact statement. See Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005); Mt. Lookout-Mt. Nebo Prop. Prot. Ass‘n v. Fed. Energy Regulatory Comm‘n, 143 F.3d 165, 172 (4th Cir. 1998); North Carolina v. Fed. Aviation Admin., 957 F.2d 1125, 1134 (4th Cir. 1992). And when an agency permissibly
In this instance, the agency concluded that the Surface Mining Control and Reclamation Act and accompanying regulations gave it just three options in reviewing the proposed action of a private party on private property—take no action, grant the license or deny the license. It considered and rejected the no-action alternative because it concluded that this option fell outside of its legislative authority. As it understood the federal program for Tennessee under the Surface Mining Act, the program did not give it authority to decline to act on the application. See Gov‘t Br. at 23 (“[The Office of Surface Mining] listed the only alternatives available when a federal agency is reviewing the proposed action of a private party” to mine privately owned land.). It considered and rejected the denial-of-the-license option as an inferior course of action. See JA 553 (noting that the temporary and permanent changes that the mining would cause would be prevented but “[d]isapproval would also result in the loss of employment opportunities associated with this mine site as well as the loss of revenue to the local economy and county tax base“). And it picked the preferred alternative—granting the license.
We do not disagree with the agency‘s inclusion of these three options in its assessment, and we do not disagree with its assessment of each option. But the suggestion that the agency had authority only to mention these three alternatives in its environmental assessment presents a false trichotomy. Whatever duties the Surface Mining Control and Reclamation Act imposes on the Office of Surface Mining, it does not suspend the agency‘s independent obligations under the National Environmental Policy Act. To the contrary, in enacting the Surface Mining Control Act, Congress disclaimed any interest in modifying the National Environmental Policy Act. See
Nor, at any rate, has the agency demonstrated that the Mining Act pulls it in one direction while the Environmental Act pulls it in another when it comes to the review of this mining application. In claiming it has authority under the Mining Act only to grant or deny a license, the agency cites four provisions—
Even less clear is why the “Statement of purpose” of the Act,
Still more puzzling is the agency‘s invocation of
Whether in the context of environmental assessments or environmental impact statements, other courts have been skeptical of this kind of agency solipsism—that the agency‘s licensing responsibility gives it authority only to say “yes” or “no” to permit applications, making these the only alternatives the agency must discuss. As these courts correctly have recognized, the National Environmental Policy Act prevents federal agencies from effectively reducing the discussion of environmentally sound alternatives to a binary choice between granting or denying an application. See Davis v. Mineta, 302 F.3d 1104, 1122 (10th Cir. 2002) (“[O]nly two alternatives were studied in detail: the no build alternative, and the preferred alternative. [The agency] acted arbitrarily and capriciously in approving an [environmental assessment] that does not provide an adequate discussion of [p]roject alternatives.“); see also Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999) (“[T]he National Environmental Policy Act and Council on Environmental Quality Regulations require [an agency] to study in detail all ‘reasonable’ alternatives [in an environmental impact statement].... [Courts] have interpreted this requirement to preclude agencies from defining the objectives of their actions in terms so unreasonably narrow they can be accomplished by only one alternative.“); Simmons v. United States Army Corps of Eng‘rs, 120 F.3d 664, 666-67 (7th Cir. 1997) (“One obvious way for an agency to slip past the strictures of [the National Environmental Policy Act] is to contrive a purpose so slender as to define competing ‘reasonable alternatives’ out of consideration (and even out of existence). The federal courts cannot condone an agency‘s frustration of Congressional will. If the agency constricts the definition of the project‘s purpose and thereby excludes what truly are reasonable alternatives, the [environmental impact statement] cannot fulfill its role.“); cf.
Nor does Dep‘t of Transportation v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004), support the agency‘s position that it may redefine the “alternatives” discussion in an environmental assessment or an environmental impact statement to the all-or-nothing-at-all option of granting or denying the permit. It concerned a matter not in dispute here—whether a “[m]ajor Federal action” had occurred sufficient to prompt the agency to prepare an environmental impact statement. Id. at 763-64, 124 S.Ct. 2204. “What is not properly before us,” the Court disclaimed, “is any challenge to the [environmental assessment] due to its failure properly to consider possible alternatives to the proposed action (i.e., the issuance of the challenged rules) that would mitigate the environmental impact of the authorization of cross-border operations by Mexican motor carriers.” Id. at 764, 124 S.Ct. 2204. In any event, even if Public Citizen and its discussion of agency authority governed the “alternatives” requirement, we have explained why the agency had authority to require the coal company to modify its proposal. See
To be clear, our objection to the agency‘s position is a discrete, and readily correctable, one: The agency holds to the view that it effectively may not discuss or consider any alternatives other than granting or denying an application in an environmental assessment (and presumably an environmental impact statement), and that position cannot be reconciled with the Surface Mining and Reclamation Act, the National Environmental Policy Act or the regulations promulgated under either Act. We appreciate that the agency has ample discretion to determine the number of alternatives it will identify and discuss; but it cannot adopt the across-the-board position that its discretion will never exceed two alternatives (in truth, one alternative, as two options give the agency just one alternative). We appreciate that an environmental assessment concluding that a proposed action will have minimal consequences for the environment will diminish the number of alternatives that the agency should identify and consider; but this reality does not confine the agency to considering only whether to deny or grant the license, an agency “alternative” that it did not take passage of the National Environmental Policy Act to establish.
And we appreciate that the agency may apply a “rule of reason” in this area and discuss only “reasonable” alternatives to the proposed action. See Vt. Yankee Nuclear Power Corp., 435 U.S. at 551, 98 S.Ct. 1197. So, for example, the agency had no duty to discuss energy conservation as an alternative to the coal company‘s license application—as the Surface Mining Act itself encourages such mining while striking a balance between the economic, energy and employment advantages of coal mining on the one hand with the environmental hazards of coal mining on the other. See id. at 552, 98 S.Ct. 1197 (rejecting “energy conservation” as a reasonable alternative to the proposal to license a nuclear plant because “[t]o make an impact statement something more than an exercise in frivolous boilerplate[,] the concept of alternatives must be bounded by some notion of feasibility“); Cent. S.D. Coop. Grazing Dist., 266 F.3d at 897 (“An agency need not consider all policy alternatives in its decision-making. Nor must an agency pursue policy alternatives that are contrary to the pertinent statutory goals or do not fulfill a project‘s purpose.“); Burlington, Inc.” cite=“938 F.2d 190” pinpoint=“195” court=“D.C. Cir.” type=“short“>Citizens Against Burlington, Inc., 938 F.2d at 195. But this accepted limitation on the agency‘s duty does not give it a free hand to set aside anything other than granting or denying an application as an unreasonable alternative. “In contrast to a policy alternative generally“—say, energy conservation in the context of a surface mining application—“an alternative within the ambit of an existing standard“—say, a different scope of operation or additional mitigation measures—generally “may not be abandoned without any consideration whatsoever.” Cent. S.D. Coop. Grazing Dist., 266 F.3d at 898 (internal quotation marks and brackets omitted).
While we cannot accept the agency‘s interpretation of its duty to discuss alternatives in an environmental assessment, we are not prepared to invalidate this environmental assessment as “arbitrary and capricious.” Rules are rules, it is assuredly true. And one would customarily hesitate to find harmless a procedural flaw in a procedurally driven statute. As the Tenth Circuit reasoned: “In mandating compliance with [the National Environmental Policy Act‘s] procedural requirements as a means of safeguarding against environmental harms, Congress has presumptively determined that the failure to comply with [the Act] has detrimental consequences for the environment.” Davis, 302 F.3d at 1114; see Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989).
But plaintiffs have not shown that this error had any chance (or still has any chance) of altering the agency‘s deliberations or conclusions. Cf. Davis, 302 F.3d at 1115 (requiring plaintiffs in the context of a preliminary-injunction action to show that “their specific environmental interests” were injured by violation of the Act). On appeal plaintiffs have not identified a single alternative that the agency should have considered but did not. See Greater Yellowstone Coal., 359 F.3d at 1277 (stressing the importance of “record evidence suggesting two viable alternative[s]” as demonstrating agency error); cf. Pub. Citizen, 541 U.S. at 764, 124 S.Ct. 2204 (“None of the respondents identified in their comments any rulemaking alternatives beyond those evaluated in the [environmental assessment], and none urged [the agency] to consider alternatives.“).
Moreover, while the agency did not identify additional alternatives in so many words in the environmental assessment, it plainly considered alternatives during the administrative process. Among other things, the agency issued seven notices of deficiency to the coal company, and each of these deficiencies prompted the coal company to modify the plan with additional mitigation measures. See JA 57 (“All comments and concerns received by [the agency] during this integrated review process were evaluated and required [the coal company] to modify the permit application to mitigate predicted impacts to the extent practicable.“). In the environmental assessment itself, a section addressing the impact of the plan on threatened and endangered species has an extended discussion of some of the mitigation measures that were adopted and the benefits of this modification over the original licensing proposal. See JA 536 (discussing measures adopted during the review process to ease the effect of the plan on the Indiana bat and the blackside dace).
Also mitigating the agency‘s error is the fact that in 1985 the agency completed a programmatic environmental impact statement, reviewing the state program under the Surface Mining Control and Reclamation Act for all of Tennessee. That document not only reviewed four decisional alternatives (no decision, deny, grant or grant with conditions), but it also discussed alternatives in terms of the type of mining
Having rejected the agency‘s self-imposed limitation on its authority to discuss alternatives under the National Environmental Policy Act, we see no sensible point under these unusual circumstances in going one step further—invalidating the otherwise-compliant environmental assessment and prolonging this litigation, particularly with respect to a project that has already been underway for two years. When it comes to environmental impact statements (and, to a lesser degree, environmental assessments), the Act identifies two purposes: (1) to “ensure[] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts” and (2) to “guarantee[] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson, 490 U.S. at 349, 109 S.Ct. 1835. The problem with this assessment was one of form, not function. The agency in effect did consider alternatives and the assessment identified considerable other information that normally would fall under the heading of “alternatives.” While we remain reluctant to excuse procedural violations of a procedural statute, this is one of those rare instances in which it is appropriate. Cf. Greater Yellowstone Coal., 359 F.3d at 1277-78 (noting that because “by the time the Corps’ [environmental assessment] was prepared, Canyon Club and the Corps had seriously considered various alternatives,” the court had less concern about the paucity of alternatives discussed in that document); Friends of Ompompanoosuc, 968 F.2d at 1558 (noting in the context of the National Environmental Policy Act that “[b]ecause Vermont cannot demonstrate prejudice from [the Federal Energy Regulatory Commission‘s] oversight, reversal is not appropriate on this ground“); Burkholder v. Peters, 58 Fed. Appx. 94, 98 (6th Cir. 2003) (“This test is also consistent with our prior jurisprudence in [National Environmental Policy Act] cases, which has recognized a harmless-error rule ... such that a mistake that has no bearing on the ultimate decision or causes no prejudice shall not be the basis for reversing an agency‘s determination.“) (internal quotation marks omitted).
Second, plaintiffs argue that the agency‘s finding of no significant impact was arbitrary and capricious for several independent reasons. Noting that the pertinent Department of Interior Manual, part 516, chapter 13, states that an environmental impact statement should be prepared for “mountaintop removal operations,” Plaintiffs’ Br. at 18, they argue that such a statement is required here because the coal company‘s “cross-ridge mountaintop” mining operation fits within the definition of mountaintop removal found in
One reason that the Department of the Interior‘s manual might require an environmental impact statement in the context of mountaintop removal is because such removal necessarily causes a significant impact to the topography of the area. But when the company plans to restore the topography and indeed more accurately return the topography to its pre-mining contours, as is the case here, these concerns dissipate. The Surface Mining Control and Reclamation Act requires an applicant to return the land to its approximate original contour, see
Plaintiffs next argue that the finding-of-no-significant-impact document itself is deficient because “it fails to detail any reasons why the mining operations will not significantly affect the environment.” Plaintiffs’ Br. at 24. The pertinent regulation says that the finding is a document “briefly presenting the reasons why an action ... will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. It shall include the environmental assessment or a summary of it and ... [i]f the assessment is included, the finding need not repeat any of the discussion in the assessment but may incorporate it by reference.”
Plaintiffs also argue that the environmental assessment does not sufficiently address noise and road-safety issues stemming from the proposed mining. The
Plaintiffs further argue that the environmental assessment fails to account for certain environmental impacts. But one of them, the operation‘s sediment-control structures, was addressed by the cumulative hydrologic impact assessments completed as part of the Surface Mining Control and Reclamation Act process, which the agency incorporated into the environmental assessment. The agency has filed a supplemental environmental assessment addressing the other concerns in more depth, and plaintiffs have separately challenged it in the district court, making further comment on this point premature. Suffice it to say for present purposes, the environmental assessment and its reference to the cumulative hydrologic impact assessments precludes the assessment from being arbitrary and capricious. See City of Riverview v. Surface Transp. Bd., 398 F.3d 434, 440 (6th Cir. 2005) (noting that while on a more probing review there may be greater concerns, there is certainly “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion reached“).
Third, plaintiffs argue that regulations promulgated under the National Environmental Policy Act require an agency that is going to issue a finding of no significant impact to make that document available to the public 30 days before its final decision. See
As shown, the coal company‘s application does not involve mountaintop removal as the Office of Surface Mining permissibly defines that phrase. Nor does the application satisfy the three conjunctive requirements necessary to come within the second category of operations requiring 30-day public review. Given the coal company‘s modifications to its application, just 1,148.7 acres will be affected by the license, an area that is more than 100 acres less than the threshold amount specified in the guideline and indeed only 970 of those acres will be mined.
III.
For these reasons, we affirm.
No. 05-1712.
United States Court of Appeals, Sixth Circuit.
Argued: April 27, 2006. Decided and Filed: June 30, 2006.