Winds of Change Newsletter, May 2007 See sidebar for table of contents
Corps Must Halt New Valley Fills!
(Excerpted and adapted from news reports by Ken Ward Jr. of the Charleston Gazette, the Associated Press and other sources.)
In March, a federal judge blocked permits for four mountaintop removal mines, in a major ruling that could force much tougher regulation of West Virginias coal industry.
Citing the "alarming cumulative stream loss" to valley fills, U.S. District Judge Robert C. Chambers ruled that more thorough reviews of the mines potential impacts must be done before permits can be approved.
Chambers rescinded four permits issued to subsidiaries of Massey Energy, and sent the mine proposals back to the U.S. Army Corps of Engineers for a more detailed study.
His ruling has been expected for months, following a six-day trial in Huntington in October 2006.
"Judge Chambers is the third federal judge to find that the corps actions permitting mountaintop removal violate the Clean Water Act," said Joe Lovett, of the Appalachian Center for the Economy and the Environment. "Its clear that the Corps has been permitting the destruction of southern West Virginia without complying with the most fundamental federal environmental laws."
The case was filed by OVEC, WV Highlands Conservancy and Coal River Mountain Watch. Along with Lovett, attorneys from the Washington, D.C.-based group Earthjustice represented the groups. Although the judges decision involves just four mines, the groups believe it will affect more than 30 pending permits for surface mines in West Virginia, as well as permits in other states.
The four permits at issue would strip about 3,800 acres of hills and hollows, and bury more than 12 miles of streams, according to court records and West Virginia Department of Environmental Protection data.
Between 1985 and 2001, more than 1,200 miles of Appalachian streams were buried or otherwise damaged by mountaintop removal, according to a federal government study. Without additional restrictions, the May 2003 study projected, a total of 2,200 square miles of Appalachian forests would be eliminated.
The case before Chambers is a follow-up lawsuit to Judge Joseph Goodwins earlier ruling, which blocked the Corps from reviewing valley fill proposals through a streamlined "general permit" process.
With their new case, the groups argue that the Corps was wrong to approve mining operations through more detailed "individual permit" reviews.
The judge said the Corps must conduct "a full assessment of the streams ecological functions" before concluding that damage would be minimal or that damage can be offset with various "mitigation" techniques.
He blasted the Corps consistent finding that sediment ditches built on mine sites can be turned into man-made streams that adequately replace the headwaters creeks that are buried by mining.
Chambers also found that the Corps did not properly consider the cumulative impacts of the proposed permits, along with existing and previous mining in the area. He said the agency might decide that an environmental impact statement is needed for each permit.
"Moreover," the judge wrote, "while surface mining is heavily regulated by federal and state agencies, Congress mandated that the corps maintain the chemical, physical and biological integrity of the nations waters, which may require the corps ultimately to deny the permits if the adverse impacts to the waters are significant."
In April, the judge suspended parts of his ruling so that Massey can continue to dump waste rock and dirt into valley fills already started at three of the four operations. But Massey's new, planned valley fills cannot be started.
The judge essentially said the streams at stake were already irreversibly harmed.
Over the past seven years, two federal judges in West Virginia have issued rulings to more tightly regulate mountaintop removal, in response to lawsuits by OVEC and others.
Both of those rulings were overturned by the 4th U.S. Circuit Court of Appeals in Richmond, Va.
Massey, based in Richmond, had intervened in the case and will appeal the ruling, but, according to Mulhern with Earthjustice, "A successful appeal will be difficult this time. Theres no evidence in the trial record to support the Corps claims."