The Fourth Circuit Court of Appeals has upheld a U.S. Army Corps of Engineers (Corps) permit for a mountaintop mine. Ohio Valley Envtl. Coal., Inc. v. Corps, No. 12-1999 (4th Cir. 5/15/13). Four environmental groups challenged the Corps’s decision to issue a permit for placement of overburden rock in valleys (so-called valley fill) without conducting a review under the National Environmental Policy Act. The Corps determined that the recognized impacts did not require it to refuse the permit. Information about a D.C. Circuit Court of Appeals determination upholding the U.S. Environmental Protection Agency’s (EPA’s) after-the-fact rescission of a Corps permit for valley fill from a mountaintop mine appears in Issue 454 of this Update.

Here, after EPA objected to the permit, the permittee and EPA agreed on mitigation measures that were incorporated in the permit. The Fourth Circuit upheld the permit, stating, “The record amply shows that the Corps grappled with the issue extensively, rationally finding that (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit and (2) the compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.”