#TBT: Lawsuits Have Helped Slow MTR; What’s Up with the Settlement Money

It’s #TBT, AKA #ThrowBackThursday. So, we thought we’d re-post an article that originally ran in our Summer 2017 Winds of Change (see pages 16-18) newsletter. 

The laws surrounding mountaintop removal in West Virginia have never been adequately enforced. People living near mountaintop removal sites are known to suffer extremely high illness rates. Many small communities have been destroyed. Headwater streams have been buried, and other streams have been illegally polluted. OVEC and other groups have worked for more than 20 years to try to get politicians to demand that all pollution laws be strictly enforced, but most West Virginia politicians are firmly in the pockets of the coal industry. If common sense, not to mention law and order, prevailed, mountaintop removal would have been banned long ago.

We are so grateful to our attorneys who have worked with us for more than a decade to successfully sue mountaintop removal coal companies, corporate landowners, and government agencies for egregious legal failures. Lawyers from Appalachian Mountain Advocates, the Sierra Club, Public Justice, and Earthjustice have made it possible for OVEC and the WV Highlands Conservancy to force companies to build pollution control systems and pay big penalties for breaking pollution laws. Our litigation has also stopped some mountaintop removal mines from getting started.

Joe Lovett, the founder of Appalachian Mountain Advocates, has done an exceptional job of working with the federal courts, coal companies, and the U.S. Department of Justice to direct millions of dollars from settlements in enforcement litigation towards Supplemental Environmental Projects in West Virginia, instead of letting all the money go into federal coffers.

A settlement of a lawsuit happens when the parties come to an agreement without a court trial, and judges often prefer that lawsuits be settled out of court. Any settlement must be approved by the appropriate judge.

No legal settlement money has ever gone to OVEC. We do not sue to gain money; we sue to try to gain some justice, to make coal companies and agencies obey mining laws. And, by law, no civil penalties resulting from the type of lawsuits we have filed when companies and agencies break laws may directly benefit any of the organizations or law firms that brought the litigation.

Some people have asked us why our legal settlement money has not gone directly to the communities that have been most harmed by mountaintop removal. The short answer is that our monetary settlement agreements are not allowed to be used in that way. We have no control over this; strict rules apply to the process of diverting civil penalties from the federal coffers to uses that help the state’s waters and people.

For people whose lives have been damaged by mountaintop removal, this could be seen as one more injustice stemming from the coal industry. We understand, but we’ve had to live by the rules of the legal system. If we didn’t stand and sue, the situation would be worse!

As a result of our lawsuits, at least $20 million has gone to starting or expanding three valuable West Virginia enterprises. The newly formed Appalachian Headwaters organization has been designated to receive more than $11 million in Supplemental Environmental Project funds that otherwise would have gone to the federal treasury. More than $4 million was used to establish the Land Use and Sustainable Development Law Clinic at the West Virginia University College of Law. And, a major expansion of the West Virginia Land Trust was made possible by nearly $12 million of our legal settlement money being allocated to that organization.

Below is a summary of how the almost $20 million in legal settlement money has been used and/or is being planned to be used.

Appalachian Headwaters
The non-profit organization Appalachian Headwaters was formed in 2015 to improve streams, forests, and communities throughout central Appalachia.

Although some people have claimed that growing native forests on old mountaintop-removal sites could be rather easily accomplished by planting trees, the leaders of Appalachian Headwaters know that this is not the case. Our legal settlement money will be used to do the expensive work of trying to regrow forests on small amounts of former mountaintop removal land. Eleven million dollars is a lot of money, but the damage from MTR cannot be cheaply fixed, and no one should believe that this amount of money is adequate to restore vast amounts of already destroyed MTR land or to fix many miles of polluted streams. However, we hope that some successful demonstration projects can take place. Even so, mountaintop removal must end. Now.

From their website: 

We work with leading academic experts, engineers, coal mining companies, community groups, and landowners to re-establish productive native hardwood forests and restore water quality on abandoned mountaintop-removal and other large-scale surface mining sites. 

Our work has potential for agroforestry and other sustainable economic activities. Over time, we will help our communities to reclaim scarred mountains and impaired streams across our region.

Headwaters is also developing a regionally focused economic and workforce development program to grow an apiculture and native plant horticulture industry in central Appalachia. The program will train southern central Appalachia’s displaced and underemployed workforce in the skills necessary to become apicultural and horticultural entrepreneurs, empowering workers to participate in lucrative, sustainable industries including honey production, bee colony sales, and native plant cultivation for both restoration industries and landscaping purposes.

West Virginia Land Trust
by Executive Director Brent Bailey

Appalachian Mountain Advocates’ and OVEC’s and partners’ participation directing lawsuit settlement funds to on-the-ground conservation efforts has allowed the West Virginia Land Trust (WVLT) to expand its reach significantly and create successes that would not have otherwise happened.

WVLT’s nationwide focus is on working with private landowners to protect land, either through landowner agreements called easements, which restrict future development of properties, or through outright acquisition of lands.

More than 5,000 acres have been protected by WVLT since the legal settlement funds were established. Parcels in the Gauley, Kanawha, Greenbrier, Ohio, and New River watersheds have been conserved. These include 665 acres of land that were purchased and will eventually be transferred to federal ownership as part of the National Park Service’s Gauley River National Recreation Area; two islands in the Ohio River that will be restored and enlarged and eventually transferred to the U.S. Fish and Wildlife Service’s Ohio River Islands National Wildlife Refuge; a Civil War site in Pocahontas County that was part of the Battle of the Greenbrier River in 1861, which helped to define the future border between Virginia and West Virginia; and several agricultural and forest easements on private lands. Projects that are likely to conclude in 2017 cover almost 2,000 more acres.

In addition to land protection, the WVLT’s mission is to support a conservation movement in the state. To that end, the trust has promoted partner organizations with grants, trainings, and organizational leadership. With leadership from WVLT, the Guyandotte Water Trail Association has strengthened its membership, expanded its range, added staff to identify new access points for boating and fishing along the river, and attracted grant funding for construction of access ramps at key points along the route of the trail. WVLT staff has written proposals that have raised almost $1 million in additional grant funding for projects around West Virginia.

Having raised the profile of conservation, land protection opportunities, and the organization with an active outreach program, WVLT has attracted additional resources. Federal agencies have directed corporations to make compensatory payments for conservation to WVLT in amounts totaling $800,000. Private landowners, some of whom live away, have donated family properties to WVLT: In 2016, 190 acres of forest in Doddridge County, which include a patch of old-growth forest, were given to the land trust for permanent protection. “I’ve looked for years for an organization in West Virginia that does what you do, and I’m really glad I found you,” said the donor.

Land Use and Sustainable Development Law Clinic at the WVU College of Law 
by managing attorney Nathan Fetty 

The successes of Appalachian Mountain Advocates, OVEC, and partners led to the creation of the Land Use and Sustainable Development Law Clinic at the WVU College of Law.

The Land Use Clinic’s aim is to protect land and water and to aid West Virginia communities with land use planning and community-development efforts. We do this by providing pro bono legal help. We have a team of lawyers, land use planners, and third-year law students. The law students, supervised by licensed attorneys, take on clients. The students get the benefit of this experience in their last year of law school, and the clients get legal help they might not otherwise. It’s a benefit for everyone. 

In the five-plus years the Land Use Clinic has been operating, we’ve been involved in protecting thousands of acres of West Virginia land. This often involves innovative legal strategies that have been used more widely in other parts of the country. We’re excited to be ramping up such efforts in West Virginia. The lands we’ve helped protect have a range of conservation values. They are critical for protecting attributes like water quality, habitat for rare species, open spaces, and outdoor recreation.

We also work with dozens of local governments in West Virginia. We help them develop comprehensive land use plans and craft ordinances to implement those plans. We work with them on wastewater issues to improve water quality. We develop strategies to deal with vacant, dilapidated, and abandoned buildings, so as to improve local environments and local economies. And we have spearheaded a series of conferences to train scores of local government officials and volunteers in an array of land use law issues. 

The idea for creating the Land Use Clinic was unusual. Instead of coal companies’ penalty monies going to the federal coffers, they were re-directed to West Virginia to establish our program. We overlap with West Virginia Land Trust quite a bit in our land-protection work. We also work with other land trusts and other types of nonprofits.

We’re proud of the work we’ve been able to do and continue to do. But it wouldn’t have been possible without the early and enthusiastic support of Appalachian Mountain Advocates, OVEC, and partners.