Winds of Change Newsletter, December 2007 See sidebar for table of contents
Judge: Valley Fill Damages Trump $$$ Lost
On October 11, a federal judge ruled in our favor and stopped a coal company from starting new valley fills at Jupiter Holdings Callisto mine in Boone County.
Bim resident Dorsey Green, whose home in Dry Branch Hollow is very close to one of the blocked valley fills, was relieved by the judges decision.
"I am so thankful for this ruling. Ive been a coal miner my whole life and this valley fill would have destroyed my homeplace and everything I have worked for," Green said. "I have spent many sleepless nights thinking about the terrible representation we as a community get from our regulatory agencies. This ruling will restore my sleep and my retirement years."
OVEC, Coal River Mountain Watch and the West Virginia Highlands Conservancy, represented by the Appalachian Center for the Economy and the Environment, Earthjustice and Public Justice, challenged the valley fill permit based on earlier legal victories.
In granting our motion for a temporary restraining order and preliminary injunction, U.S. District Judge Robert C. Chambers noted that we "made a strong showing that the permits issued by the Corps are arbitrary and capricious, contrary to law, and contrary to the economic and environmental balance struck by Congress in the passage of the relevant environmental statutes."
The order halts the mining companys plan to begin new valley fill activities at the site until the court can rule on our challenge to Callistos permit.
"The judge just gave hope to other affected residents that live in communities near this type of destructive, illegal mining," said Judy Bonds of Coal River Mountain Watch.
On Oct. 12, in "Boone County mountaintop removal project blocked," Ken Ward, Jr. of the Charleston Gazette reported:
Chambers ruled that permanent damage to streams and forests outweighed temporary and speculative economic harm to the company.
"Money can be earned, lost and earned again," Chambers wrote in a 12-page opinion, "a valley once filled is gone."
...Chambers ruled in March that the (Army Corps
of Engineers) had not fully evaluated potential environmental damage before approving four other strip-mining permits owned by Massey Energy.
In (this most recent) ruling, Chambers explained that all environmental laws contain "numerous provisions that serve as checks on development, industry and other economic activities in order to ensure that environmental consequences are considered and valuable environmental resources are protected.
"While it is true that these statutes contemplate a certain amount of environmental degradation, they also mandate a certain amount of economic loss," Chambers wrote. "Economic gain is not to be pursued at all costs, and certainly not when it is contrary to the law."
Initially, officials from Magnum Coal said that they would not need to begin new valley fills until after the 4th U.S. Circuit Court of Appeals hears an appeal of Chambers previous decision. However, in mid-December, Magnum told environmental groups the company planned to move forward much sooner on at least one valley fill.
During a Sept. 26 hearing in Huntington (Ed. note: thanks to all that attended this hearing we had a great showing!), company officials said their existing valley fill is almost full of waste rock and dirt. To continue mining, company officials said, they needed to start a new valley fill much sooner.
Chambers explained that Jupiters "main interest in opposing this motion is its own economic interest.
"While the court must certainly consider the economic effect of this decision on Jupiters employees and the surrounding communities, these effects are distinguishable from the harm suffered by Jupiter itself," Chambers wrote.
"While Jupiter may or may not be a good employer or a beneficial corporate citizen, it is certainly out to make money," the judge wrote. "Whether it is environmental enforcement or other market forces that cut into profits, Jupiters interest in its own bottom line may cause it to lay off its workers."
Chambers said the "main harm suffered by Jupiter, therefore, is a delay in reaping economic benefits from the Callisto mine.
"This temporary economic harm can be outweighed by the permanent harm to the environment that comes from the filling of streams and valleys," Chambers wrote.
Read the judges ruling here (pdf).