Bragg v. West Virginia Coal Association
Court rules that West Virginia is immune from suit in federal court for violations of national mining law, explaining that allowing environmental plaintiffs to proceed against state mining official would offend state’s “sovereign dignity”
Status: Final
Discussion & Analysis: “Mountaintop removal mining” is a controversial form of extracting coal that involves destroying a mountaintop to reach coal seams that lie below. Prevalent in West Virginia and other parts of Appalachia since the 1990s, the process entails clear-cutting the trees from the top of a mountain, removing the topsoil, and blasting away the exposed subsoil and rock with explosives. Companies conducting this type of mining dump the resulting debris and sludge into surrounding hollows, valleys, and streams. Criticism of mountaintop removal mining has been intense, with well-documented environmental consequences including the extensive pollution of surface water and groundwater, increased erosion (causing floods and landslides), and elimination of plant and animal species. Neighboring communities must endure flying rock, dust, and foundation-shaking vibrations and noise. Formerly forested mountains are transformed into (at best) grass fields. It is estimated that over 1,200 miles of Appalachian headwater streams have been buried by mountaintop removal mining.
In 1998, a coalition of private citizens and environmental groups sued the Director of the West Virginia Division of Environmental Protection to ban the practice of mountaintop removal mining, for which the state had long been issuing permits. The case was brought as a citizen suit under the federal Surface Mining Control and Reclamation Act (SMCRA), a national environmental law whose first stated purpose is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” The Director asked that the case be dismissed, arguing that state officials have sovereign immunity under the Eleventh Amendment. The district court disagreed and issued an injunction in favor of the plaintiffs.
The Fourth Circuit reversed the lower court, concluding that the Director was immune from suit in federal court. The court analyzed the Eleventh Amendment, which immunizes states from federal suits for money damages, and rejected the so-called Ex parte Young exception to immunity. Under the Ex parte Young doctrine, federal courts have jurisdiction to enjoin actions of state officials that violate federal law—even if the state itself is immune from suit. The Bragg plaintiffs sought precisely this relief: an order prohibiting the Director from continuing to violate SMCRA by issuing permits for mountaintop removal mining. But the Fourth Circuit determined that it was actually West Virginia state law—not federal law—that the plaintiffs were challenging, and explained that under SMCRA, West Virginia had adopted, and EPA had approved, its own state law governing surface mining. That the state law had to conform to minimum federal standards did not change the fact that it was state, rather than federal law. Restraining the actions of the Director under state law would undermine cooperative federalism and offend the “dignity” of West Virginia. (The court also rejected plaintiffs’ claim that West Virginia had waived its sovereign immunity under SMCRA.)
The court suggested that plaintiffs direct their complaint instead to West Virginia state courts, or to EPA (which, under SMCRA, could presumably revoke West Virginia’s authority to regulate surface mining). But neither option is viable: West Virginia state judges, who are selected through partisan elections, hardly appear to be the appropriate audience for claims that a national environmental law has been violated by lucrative, state-sanctioned mining practices that enjoy the support of local industry and state politicians. Nor does it appear likely, for political and well as practical reasons, that EPA would exercise the drastic option of revoking state permitting authority to address alleged violations in one part of West Virginia’s mining sector.
The Fourth Circuit’s ruling in Bragg presents one of the clearest examples to date of how a federal court can deploy a constitutional doctrine to deny federal relief in the face of clear, ongoing environmental damage and violations of law. The decision also demonstrates how a court can disrupt cooperative federalism, as embodied by Congress in an environmental statute.
Key Opinion: Bragg v. West Virginia Coal Association, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
See also: Despite the Fourth Circuit’s ruling in Bragg, environmental plaintiffs have been persistent in their efforts to challenge mountaintop removal mining under national environmental laws. See, e.g., Ohio Valley Environmental Coalition (OVEC) v. U.S. Army Corp of Engineers, 479 F.Supp.2d 607 (S.D.W.Va. 2007), reversed, OVEC v. Aracoma Coal Company, 556 F.3d 177 (4th Cir. 2009) (upholding Corps’ issuance of specific individual permits under the National Environmental Policy Act and the Clean Water Act), reh’g & reh’g en banc denied, 567 F.3d 130 (4th Cir. 2009).
Other litigation efforts have produced mixed results. See, e.g., OVEC v. Kempthorne, 473 F.3d 94 (4th Cir. 2006) (holding that the Office of Surface Mining improperly approved amendments to West Virginia’s surface mining program under SMCRA); OVEC v. Bulen, 429 F.3d 493 (4th Cir. 2005) (rejecting challenge to Corps’ issuance of general permit allowing discharges under the Clean Water Act); Citizens Coal Council v. U.S. Environmental Protection Agency, 447 F.3d 879 (6th Cir. 2006) (en banc) (upholding EPA’s rule easing the environmental requirements for re-mining of abandoned coal mines under the Clean Water Act; court split 8-5, almost completely along party lines of the President who appointed each judge); OVEC v. Hurst, 604 F. Supp. 2d 860 (S.D.W.Va. 2009) (holding Corps’ determination that cumulative impacts of all mountaintop-removal activities under a general, nationwide Clean Water Act permit would be minimal was arbitrary and capricious).
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