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Bragg v. Robertson

ELR Citation: 29 ELR 21316
Nos. No. CivA 2:98-0636, 54 F. Supp. 2d 653/48 ERC 1913/(S.D. W. Va., 06/17/1999) settlement agreement of citizen suit claims

The court upholds as reasonable and fair a settlement agreement in a citizen suit challenging the federal government's failure to perform Federal Water Pollution Control Act (FWPCA) duties concerning mountaintop mining in West Virginia. The agreement purported to settle environmental groups' claims against the government concerning mountaintop mining in the state and allowed the groups to challenge specific mining permit processes and future permitting. In the agreement, the government also consented to prepare an environmental impact statement (EIS) for a policy to minimize the adverse effects on waters caused when mountaintop mining discharges fill to adjacent valleys. During the EIS process, any mountaintop mining operation that proposes draining a watershed of 250 acres or more will be presumed to adversely affect waters and must obtain an FWPCA §404 permit to discharge fill.

The court first holds that a nonsettling mining association lacked standing to challenge the terms of the agreement. Although expected delays in the issuance of FWPCA permits and resultant losses therefrom demonstrate an injury-in-fact, the nonsettlors failed to establish formal legal prejudice. The court next holds that because the agreement does not contain substantive rules, the required FWPCA §404 permit for 250 acres need not undergo a notice-and-comment period and, thus, does not violate the Administrative Procedure Act. The court then holds that an agreement provision stating that the government will retain consultants to assist in preparing the EIS does not violate the National Environmental Policy Act's requirement that an EIS be prepared by an unbiased contractor. The court also holds that mining association's failed to demonstrate that the government's decision to take action in West Virginia was an arbitrary state action with no rational basis that violated the Equal Protection Clause. The court further holds that agreement provisions allowing the environmental groups to comment on individual permits and to choose consultants to assist completion of the EIS are not impermissible delegations of executive authority.

The court next holds that the settlement agreement is fair, adequate, and reasonable. The agreement provides a rational approach to resolving claims against the government and to addressing larger issues raised in the case. Moreover, it supplies an incrementally more efficient and logical method of reviewing all permit applications required before a company can proceed with mining operations. Further, the predictable delays to mining permits and the slight uncertainty created by a paragraph absent from the agreement are insufficient to derail the otherwise fair, reasonable, and lawful agreement. The court then voluntarily dismisses the suit against the government, but does so without prejudice so that it may oversee future disputes arising from the agreement.

Counsel for Plaintiff
Patrick C. McGinley
Law Offices of Patrick C. McGinley
737 S. Hills Dr., Morgantown WV 26505

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