Winds of Change Newsletter, December 2006 See sidebar for table of contents
Army Corps of Engineers Apparent Policy: No Headwater Streams Shall Be Left Unburied
by Dianne Bady
Over a year ago, OVEC, the WV Highlands Conservancy and Coal River Mountain Watch challenged valley fill permits at four large strip mines, arguing that the permits were issued in violation of the law and would cause significant and devastating environmental damage.
In June, just before the scheduled trial, the US Army Corps of Engineers suspended the permits. This unprecedented, voluntary move was an attempt to make the permits more bullet proof before the judge heard the case. The Corps move delayed the trial, but it was finally heard before Judge Robert C. Chambers in federal court in Huntington over six days in October. Final arguments in the complex case were heard November 29th.
Were very ably represented by the Appalachian Center for the Economy and the Environment and by attorneys with Earthjustice in Washington, DC.
In opening arguments, our attorney Joe Lovett told Judge Chambers that, "The Corps of Engineers is permitting the destruction of southern West Virginia with little more than a wink and a nod."
Many media reports stated that the outcome of this case could set broad new policy that would affect all future mining operations in southern West Virginia.
Watching the behavior of coal industry lawyers and technical people as they sat together with state and federal regulators, it was obvious to me that this is the correct assessment. The crowded Coal-and-regulators side of the courtroom seemed calm whenever their experts testified.
But often, when Joe Lovett was questioning witnesses, there was an intense flurry of activity as coal lawyers and experts, and government regulators, hurriedly flipped through pages of thick documents and whispered to each other.
We argued that the Corps did not adequately study the impacts before approving permits at these four Massey mountaintop removal mines: Republic No. 2 Mine in Fayette County, Camp Branch Mine in Logan County, and Black Castle and Laxare East, both in Boone County.
These mines could produce 40 million tons of coal about one-fourth of the coal produced in West Virginia.
Were asking the court to force the Corps to conduct detailed Environmental Impact Statements on each of these mines before they attempt to reissue the permits.
Corps officials stuck to their argument that Environmental Impact Statements are not necessary at these mines because they would cause only minimal environmental impacts.
At times the trial seemed surreal. Cynthia Morris, a Corps attorney, claimed that mountaintop removal and reclamation will actually make some parts of Southern West Virginia better than they are now, by improving the water quality. She argued that environmentalists are spreading a myth that mountaintop removal is damaging to streams and forests. (Remember, this is "your" government in action! Your tax dollars pay the salaries of these regulators who seem to twist the law and ignore reality in order to approve more mountaintop removal permits.)
Our expert witness, Dr. Bruce Wallace of the University of Georgia, pointed out that when streams are buried by valley fills, "the streams that are lost are perpetually lost. Theres no correcting for that."
The Corps used their modeling data to argue that strip mines would reduce water runoff during rainstorms.
But one of our experts, Keith Eshleman, a professor at the University of Maryland, gave evidence for the obvious that mountaintop removal mines, where large forested areas are forever clearcut, play a huge role in increasing the severity and frequency of coalfield flooding.
He said that the Corps ignored four separate studies that monitor water runoff; studies that showed that runoff increases as a result of mining and reclamation, putting those who live near these mines at a greater risk of flooding.
"It was irrational for the Corps to not give consideration to these studies," Dr. Eshleman said. "The studies were done in similar areas and are relevant to the decisions made in this case."
Most mornings as I was coming into the courtroom, I watched as a former top West Virginia water regulator wheeled a dolly holding a stack of documents several feet high into the court.
I wondered how much her income has increased now that she works for the WV Coal Association, which intervened in our case. I wondered how she could sleep at night.
Toward the end of the trial, as one federal regulator argued against our positions, she labeled her arguments as those of "the United States."
Geez, I thought, OVEC vs. the United States?
I didnt like the sound of that until I realized that it was really OVEC vs. the Bush administration.
Listening to the tortured science of the coal industry and the government regulators, and hearing our attorneys and experts responses, it hit me as never before how many and varied are the ways that Coal is allowed to apparently ignore the law in their pursuit of profits.
It seems like it will take a political revolution to change this appalling state of affairs. Did that revolution begin on Election Day in November?
Lets keep working together to bring that revolution here to the coalfields!