Charleston, WV
Environmental Alert
(by Christopher (Kip) Power and Robert Stonestreet)
A federal judge in the District of Columbia has invalidated a procedure in place since 2020 governing review and evaluation of coal mine-related permitting activity under the federal Endangered Species Act (ESA). The federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) is a comprehensive, multi-media statute mandating the evaluation of a broad range of potential environmental impacts of coal mining as part of a permitting program. SMCRA created the Department of Interior’s Office of Surface Mining Reclamation and Enforcement (OSM) to promulgate and administer specific rules for issuing mining permits and establishing environmental protection performance standards for mining operations. Among many other requirements, OSM regulations require that mine permit applications include detailed fish and wildlife information pertaining to the proposed permit and adjacent areas, and a description of how the permit applicant will minimize impacts on any threatened or endangered species and their habitat from permitted mining operations.
SMCRA recognizes that, due to differences in geology and other environmental conditions among the States, responsibility for implementing its requirements “should rest with the States.” SMCRA § 101(f). Therefore, SMCRA allows the Secretary of the Interior to delegate the primary authority for administering its requirements (known as “primacy”) to a State, upon approval of a State regulatory program that meets the requirements of SMCRA (and subject to continued oversight by OSM). Currently, there are 24 States that have been granted primacy under SMCRA (a.k.a. “Primacy States”).
Section 7 of the ESA prohibits any federal agency from authorizing an action that is likely to “jeopardize the continued existence of” any endangered or threatened species, or cause “the destruction or modification of [designated critical habitat] of such species.” 16 U.S.C. …