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Bragg v. Robertson

Citation: 30 ELR 20386
No. No. CIV.A. 2:98-0636, 83 F. Supp. 2d 713/(S.D. W. Va., 02/17/2000) consent decree on SMCRA claims entered

The court accepts and enters a consent decree between a citizen group and West Virginia's environmental agency that commits the agency to strengthen the application and oversight of the state's surface coal mining program authorized under the Surface Mining Control and Reclamation Act (SMCRA). The group and the agency characterize the decree as fair, reasonable, and adequate, but the intervenors of the underlying case, made up of coal companies and mining associations, raise certain concerns and objections to the decree. The court first holds that the adversarial process produced a consent decree that is fair and reasonable. The court also holds that the decree is in the public interest as it strengthens the application and oversight of surface mining law in West Virginia.

Turning to the intervenors' objections, the court rejects their argument that the proposed policies, rules, and statutes set forth in the decree might bypass statutorily required rulemaking and legislative processes, becoming law with the court's entry of the consent decree. Agreements in the decree to change rules and regulations are proposed modifications only. The court further rejects intervenors' argument that the court lacks jurisdiction to enforce a consent decree provision under which the parties will develop an approximate original contour (AOC) plan to optimize soil placement and implement the plan as agency policy. The decree is a voluntary agreement. Thus, the court does not mandate the director's agreement to carry out his discretionary duties regarding the AOC policy, but rather stands ready to enforce the agreement at the parties' request.

Last, the court holds that all operable provisions of the consent decree will apply to any revised or new permit application. Thus, an underlying claim surrounding the permit process for one particular mine is moot.

[Prior decisions in this litigation are published at 29 ELR 21316 and 30 ELR 20115 and 20165.]

Counsel for Plaintiffs
James M. Hecker
Trial Lawyers for Public Justice
1717 Massachusetts Ave. NW, Ste. 800, Washington DC 20036
(202) 797-8600

Counsel for Defendants
Michael L. Keller, Ass't U.S. Attorney
U.S. Attorney's Office
3201 Federal Bldg.
500 Quarrier St., Charleston WV 25301
(304) 345-2200