Citizen Suits at Risk in West Virginia?

This fall, the Supreme Court of Appeals of West Virginia held that whether landowners are entitled to water replacement under the Surface Coal Mining and Reclamation Act, W. Va. Code § 22-3-1 et seq. (“SCMRA”), is a question to be resolved by the West Virginia Department of Environmental Protection (“DEP”) rather than the State’s circuit courts. This ruling has potentially significant effects on the prosecution of citizen suits under SCMRA and similarly-written State environmental laws. The plaintiffs in State ex rel. ERP Environmental Fund, Inc. v. McGraw were landowners who had petitioned the DEP on several occasions for water replacement. They argued that their water had been contaminated by operations of Eastern Associated Coal, LLC (“Eastern”) (Eastern’s permit was taken over by ERP), but, in each instance, the DEP found no evidence of contamination in violation of SCMRA.

Unsatisfied with the DEP’s response, the landowners filed suit in the Circuit Court of Wyoming County seeking to require the DEP to order the water replacement it had previously denied. The Circuit Court did so, finding, in contrast to the DEP, that Eastern’s operations had negatively impacted and contaminated the landowners’ water supplies. Notably, although the Circuit Court’s order resulted in $26,000 in monthly costs to ERP, with the potential for $7,000,000 in expenditures for permanent water replacement, neither Eastern nor ERP was made a party to the Circuit Court action.

The Supreme Court of Appeals reversed on the basis of the following key holding:

The right to institute a citizens suit under SMCRA for water replacement is
premised upon a finding that the citizens’ water supply “has been affected by contamination, diminution or interruption proximately caused by the surface mining operation.” W.Va. Code § 22-3-24(b); see W.Va. Code § 22-3-24(e). In this case, the predicate finding by the DEP of contamination specifically linked to the permitted area is missing.
In practical terms, the Supreme Court of Appeals seems to have created a bar to citizen suits – at least under SCMRA – unless preceded by an underlying finding of contamination by DEP. Future cases bear watching to determine the extent to which this holding is extended to other fact patterns or other statutes.

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Opinions are my own and do not necessarily reflect the opinions of Spilman Thomas & Battle, PLLC,  its employees, or its clients. To contact me, please e-mail

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I, Joseph Schaeffer, am solely responsible for the content of this website. My primary office address is located at 48 Donley St., Morgantown, West Virginia, 26501.

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