After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps' § 404 permit for Highland Mining's Reylas Surface Mine, seemed particularly notable. I cannot recall of similar example of a judge who was almost visibly restraining himself, issuing a decision that he plainly did not want to issue, for one reason: because he thought that the proper application of the law dictated the result, however distasteful to him personally. It is true that the 4th Circuit Court of Appeals had previously reversed Judge Chambers in a similar case, Ohio Valley Environmental Coalition v. Aracoma Coal Company, but not all judges would take such a rebuke so to heart.
The first issue in the case was whether the "Compensatory Mitigation Plan" was sufficient, notwithstanding plaintiffs' allegations that the plan did not guarantee replacement of all stream functions and values. Judge Chambers stated that he "remains extremely skeptical about the viability of stream creation on which this and other permits rely heavily," but noted that "the Fourth Circuit has expressly approved of the Corps' use of steam creation as a mitigation measure." Moreover,
The Fourth Circuit has explained that "in matters involving complex predictions based on special expertise, a reviewing court must generally be at its most deferential." Based on this deference, and the narrow review prescribed by the APA, the Court cannot conclude that the Corps' reliance on stream creation of the adoption of the CMP was arbitrary and capricious.
The second issue in the case was whether the Corps' decision not to prepare an Environmental Impact Statement violated NEPA. Here, Judge Chambers' restraint is even more notable.
The Court is thoroughly convinced that large scale surface mining is strongly correlated with elevated levels of conductivity and the loss of sensitive macroinvertebrates downstream of valley fills. This conclusion however, is not enough to vacate the Corps' decision on the Reylas permit.
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The Corps' conclusion that the cumulative impacts of this project will be insignificant is very troubling.... However, even where the science is clear ... that surface mining activities are strongly correlated with increases in conductivity and declining biodiversity, judicial review of the corps' decision is narrow. The concerns raised by Plaintiffs and the EPA are exclusively water quality concerns. In the complicated regulatory scheme governing surface mining operations, the Corps does not have primary responsibility for water quality. Under the Clean Water Act, that responsibility lies with WVDEP.... It is not unreasonable for the corps to rely on the expertise of the WVDEP....
As a final note, I feel compelled to point out that this model of judicial restraint was appointed to the bench by Bill Clinton. I'll let you do your own research regarding who appointed the majority members of the panel in Texas v. EPA.
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