Jackson Kelly PLLC

Energy and Environment Monitor

REMINDER: APPEALS FROM CERTAIN DECISIONS OF ENVIRONMENTAL BOARDS MUST BE TAKEN DIRECTLY TO WEST VIRGINIA SUPREME COURT

June 20, 2018

By: Chris M. Hunter

As of March 6, 2018, certain decisions of the Air Quality Board (“AQB”), the Environmental Quality Board (“EQB”), and the Surface Mine Board (“SMB”) must be directly appealed to the West Virginia Supreme Court unless all parties consent to proceeding in Kanawha County Circuit Court. 

 

West Virginia Code §§ 22B-2-3 (governing appeals to the AQB), 22B-3-3 (appeals to the EQB), & 22B-4-3 (appeals to the SMB) previously required that appeals from decisions of the State’s environmental boards be filed either in Kanawha County Circuit Court or in the county in which the establishment is located, with review of the Circuit Court’s decision by the Supreme Court of Appeals.

 

Senate Bill 395 was introduced to provide for judicial review of certain decisions of the AQB, EQB, and SMB directly to the Supreme Court of Appeals of West Virginia.  The introduced version of the bill mandated the filing of appeals of AQB or EQB decisions involving the denial, approval, or modification of a permit with the Supreme Court, while all appeals from SMB decisions were required to be filed with the Supreme Court.  A committee substitute by the Senate Judiciary Committee passed the Senate unanimously on February 9, 2018.

 

The House Judiciary Committee amended the bill by adding a provision to §§ 22B-2-3, 22B-3-3, & 22B-4-3, which required appeals to be filed in the Supreme Court but also allowed an appeal to proceed instead in the Circuit Court of Kanawha County if all parties consent. Additionally, the amended/passed version of the bill returned review of SMB appeals not involving the approval, denial, or modification of a permit to either Kanawha County Circuit Court or the county where the mine operation is located.  Thus, appeals from SMB orders involving enforcement actions must be filed either in Kanawha County or the county where the mine is located. The bill was signed by the Governor on March 20, 2018 and made effective from its passage date: March 6, 2018. 

 

The law governing appeals to environmental boards can now be summarized as follows:

 

  • For AQB and EQB decisions regarding an order denying an application for a permit, or approving or modifying the terms and conditions of a permit, the petition shall be filed in the Supreme Court of Appeals within 30 days of the board’s order; but if the parties consent, the appeal may continue in the Circuit Court of Kanawha County;
  • For all other AQB cases, the petition shall be filed in the circuit court of the county where the alleged air pollution complained of originated or in Kanawha County upon agreement between the parties;
  • For EQB cases involving an order revoking or suspending a permit, the petition shall be filed in the circuit court of Kanawha County;
  • For EQB cases involving an order directing that any and all discharges or deposits of solid waste, sewage, industrial wastes or other wastes, or the effluent be stopped or prevented or else that remedial action be taken, the petition shall be filed in the circuit court of the county in which the establishment is located or in which the pollution occurs;
  • For SMB decisions involving an order denying an application for a permit, or approving or modifying the terms and conditions of a permit, the petition shall be filed in the Supreme Court of Appeals within 30 days of the board’s order; but if all parties consent, the proceedings may continue in the Circuit Court of Kanawha County;
  • For all other SMB decisions, the petition shall be filed in the circuit court of Kanawha County or in the county where the surface mining operation is located.

A copy of the amended/passed version of the bill is available here.  

 

 

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