Goodwin won’t hold corps in contempt of permit ruling

A federal judge has declined to hold the U.S. Army Corps of Engineers in contempt of a ruling meant to block streamlined permitting of mountaintop removal coal mines.On Wednesday, U.S. District Judge Joseph R. Goodwin rejected the contempt motion filed by the Ohio Valley Environmental Coalition.Goodwin said that he had been shown no evidence that the corps is violating his July 8 order.Late last week, environmental group lawyers Joe Lovett and Jim Hecker had asked Goodwin to find the corps in contempt of his July 8 injunction.In a nine-page court filing, lawyers for the coalition said that a recent agency status report “shows that the corps is violating the court’s injunction on a systematic basis.”In his July 8 ruling, Goodwin said that the corps could no longer approve mining valley fills through a streamlined permit process meant only for activities that cause minor environmental damage.Rather than these “general” or “nationwide” permits, Goodwin said, coal companies must go through individual permit reviews when they propose to bury streams with waste dirt and rock. The judge ordered the corps not to issue new Clean Water Act permits for valley fills without individual reviews.Goodwin ordered the agency to “suspend those authorizations for valley fills and surface impoundments on which construction had not commenced as of today, July 8, 2004.”In an Aug. 31 ruling, Goodwin declined a request by the environmentalists that he clarify his ruling to block such an interpretation by the corps.
At the time, the judge said that the corps “is entirely capable of carrying out my unambiguous orders. Construction on particular valley fills and surface impoundments had either begun by July 8, 2004, or it had not.”In a Nov. 24 status report filed with Goodwin, corps lawyers revealed that they have decided that valley fills can go forward if companies had started other work — such as pond-building or site preparation — at the same mining complex on July 8.On Tuesday, corps lawyers urged Goodwin to reject the environmental group’s contempt motion.Corps lawyers said that the environmentalists had cited only fears about actions that the agency might take, not about specific actions already taken.In his ruling, Goodwin said that Lovett and Hecker had not identified any specific violations.
“In the absence of ‘clear and convincing’ evidence indicating that the corps has allowed construction of new valley fills and surface impoundments that had not commenced as of July 8, 2004, there are no grounds for a finding of civil contempt,” Goodwin wrote.Goodwin also praised the corps, saying that “rather than disregarding the court’s orders,” the agency “has gone beyond its required obligations in this case.”“It has submitted a status report of its own accord,” the judge said. “[And] in the status report, the corps has demonstrated to the court that it has taken the injunction seriously, has applied a rational approach on a case-by-case basis, and has acted in good faith.”In the ruling, Goodwin included only a minor statement that appeared aimed at clarifying his original ruling.“At all times, I have made it clear that mere preparatory actions, in anticipation of construction, are not enough to qualify for exemption from the injunction,” Goodwin wrote in the five-page order. “Only projects in which substantial steps have been taken in the construction process are exempt.”
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