Surface Mining After The Bragg Decision

I. INTRODUCTION West Virginia has a long history of coal production.1 The state at one time led the nation in total coal production, while at the same time coal from West Virginia constituted one quarter of total U.S. coal production.2 In more recent years, however, West Virginia’s level of coal production has been reduced in comparison to that of other states due to the high relative cost of producing coal in the state.3 Another blow to the producers of coal in West Virginia is the action known as Bragg v. Robertson.4 In 1998 various individual plaintiffs, as well as a conservation group known as the West Virginia Highlands Conservancy, filed a civil action under a provision of the Surface Mining Control and Reclamation Act of 1977, Pub. L. No. 95-87, §522, 91 Stat. 445 (codified at 30 U.S.C. §§1201-1328) ("SMCRA" or the "Act") that allows declaratory and injunctive relief against state and federal officials for non-compliance with the Act.5 The plaintiffs generally claimed that the Director of the West Virginia Department of Environmental Protection ("WVDEP") had exhibited a pattern of violating mandatory non-discretionary duties under SMCRA and the West Virginia state regulatory program.6 These non-discretionary duties involved many areas of regulation, including water quality standards, disturbance of wetlands, hydrologic reclamation plans, Approximate Original Contour ("AOC") requirements and AOC variances, post-mining land uses, contemporaneous reclamation, and as explained later, the "buffer zone rule."7 In addition to these claims against WVDEP, the plaintiffs also alleged that certain individual members of the Army Corps of Engineers (the "Corps") had failed to carry out statutory duties under the Clean Water Act (the "CWA") and the National Environmental Policy Act ("NEPA").8 Generally, the complaint stated that the Corps did not have statutory authority under the CWA to regulate valley fills created for the purpose of the disposal of waste material, i.e., the overburden associated with mountain top mining.9 Alternatively, the plaintiffs claimed that even if the Corps could regulate valley fills, the Corps violated NEPA by issuing nationwide permits without required analysis. Finally, the plaintiffs asserted that the issuance of a nationwide permit for surface mining valley fills is unlawful.10