A federal court in West Virginia has denied a motion for an injunction pending appeal of the court’s prior approval of a Clean Water Act (CWA) permit for mountaintop mining issued by the U.S. Army Corps of Engineers (Corps). Ohio Valley Envtl. Coal., Inc. v. Corps, No. 11-0149 ( S.D. W.Va. 9/13/12). Additional details about the case appear in Issue 423 of this Update. Although it found that most of the applicable four-factor test favored plaintiffs, the court determined that they were too unlikely to succeed on the merits to justify an injunction.  

In the underlying litigation, plaintiffs had claimed that the Corps’ environmental impact statement (EIS) failed to adequately assess the permittee’s plan to mitigate stream loss via channel replacement. Regarding the plaintiffs’ potential for success on the merits, the court stated, “the applicable science in this case was disputed but tends to favor the Plaintiffs, [but] the Court also found that the Corps adequately considered the material before it when making its decision regarding the permit.” Given the deferential standard the court earlier applied to the Corps’ decision, the court found a low likelihood that the plaintiffs would succeed on the merits of their appeal.  

As to the irreparable-harm prong of the test, the court concluded that irreparable injury to the environment would occur immediately when the permittee started mining. But the court also found that the permittee, as a nonmoving party, would also experience significant harm if it were unable to proceed after prevailing on the merits in defending its permit. Balancing the harms to plaintiffs and the permittee, the court held that the defendants’ harm likely was a temporary delay in economic benefits and that “at this time the harm is too uncertain to find in Defendants’ favor on this point, compared to the harm to Plaintiffs.”  

As to the public-interest prong, the court found that, although a strong public policy favors economic activities and deference to the Corps’ permitting process, there is a stronger public interest in preventing the mining if it does not meet National Environmental Policy Act and CWA standards. Still, because the court determined that the plaintiffs had little chance of success on the merits, it declined to issue an injunction.