The 4th Circuit has followed the 6th Circuit’s lead in extending the Clean Water Act (“CWA”) “permit shield” to citizen suits filed under the federal Surface Mining Control and Reclamation Act (“SMCRA”). In a case decided March 30th, the 4th Circuit said “we agree with the district court - and thus the [6th] Circuit in Sierra Club v. ICG Hazard, LLC, 781 F. 3d 281, 291-92(6th Cir. 2015) - that…
In January, the Corps of Engineers reissued 12 existing Nationwide §404 permits (“NWPs”) and issued 4 new ones. As part of this effort, the Corps split NWP 12 (formerly for all utility lines) into three new NWPs: 12 (oil or natural gas pipelines); 57 (electric utility lines and telecommunications) and 58 (utility line activities for water and other substances). These 16 NWPs took effect on March…
Earlier this year, OVEC and other anti-mining groups sued the WVDEP, claiming the agency had failed to provide notice to OSM that the State’s surface mining reclamation program had suffered “a significant change in funding or budgeting.” The WVDEP moved to dismiss the Complaint claiming that: 1) the plaintiffs lacked standing because there had been no failure of the bonding system; 2) plaintiffs…
The Migratory Bird Treaty Act (MBTA) makes it a misdemeanor, “unless permitted by regulations” to “pursue, hunt, take, capture, [or] kill” migratory birds “by any means or in any manner.” 16 U.S.C. Section 703(a). For years, the Interior Department interpreted the Act as prohibiting so-called “incidental takes” - deaths of birds by activities undertaken for other purposes, such as construction of…
Three anti-mining organizations - Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club (collectively “Plaintiffs”) - sued the West Virginia Department of Environmental Protection (“WVDEP”) for failing to notify the federal Office of Surface Mining (“OSM”) of a significant change in funding or budgeting concerning WVDEP’s ability to manage its…
In a major victory for natural gas pipeline development, the Supreme Court ruled 7-2 that the U.S. Forest Service had authority to grant a right-of-way to the Atlantic Coast Pipeline (“ACP”) to extend its pipeline under a portion of the Appalachian Trail (“AT”) located within the George Washington National Forest. SeeU.S. Forest Service v. Cowpasture River Preservation Ass’n. and Atlantic Coast…
On April 15, 2020, a federal district court in the District of Montana vacated the U.S. Army Corps of Engineers’ Nationwide Permit 12 (“NWP 12”), which was issued in 2017 pursuant to Section 404 of the Clean Water Act and authorizes discharges of dredged or fill material associated with utility line activities. The Court also issued an injunction preventing the Corps from authorizing further use…
In a case challenging the U.S. Army Corps of Engineers’ approval of the Keystone XL pipeline, a federal district court in Montana issued a sweeping injunction last week that, on its face, seems to prohibit the Corps from approving any activities under its Nationwide Permit 12 (“NWP 12”), which authorizes discharges of dredged or fill material associated with utility line activities, until it…
The West Virginia Legislature has adopted a West Virginia Critical Infrastructure Protection Act. See W. Va. Code §61-10-34 (copy available at https://legiscan.com/WV/text/HB4615/2020). The new Act establishes three categories of criminal actions concerning “critical infrastructure”.
Trespass: It is a misdemeanor to “willfully and knowingly … enter[] property containing a critical infrastructure…
On March 26, 2020, the United States Environmental Protection Agency (“EPA”) issued guidance on how the agency will address compliance and enforcement issues in light of COVID-19.
In its guidance, EPA acknowledges that illnesses, travel bans and social distancing may cause shortages in staffing that impact monitoring or compliance. Accordingly, the EPA provides that it will, under specifically…
The plaintiffs in an important Clean Water Act (“CWA”) case filed their reply brief with the Fourth Circuit on January 28, 2020. We have previously written about the ruling in Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, here and here. The case is now on appeal before the Fourth Circuit from the District Court’s ruling, which gave broad effect to the Clean Water…
