Appeals Court Reverses Limits on Mountaintop Removal Coal Mining

In mountaintop removal coal operations, the peaks of mountains are blasted away with explosives to expose coal seams and the waste materials are dumped into streams, causing what the plaintiff environmental groups claim is irreversible ecological damage.

In a victory for the coal industry, a panel of the U.S. Fourth Circuit Court of Appeals ruled 2-1 that U.S. District Judge Robert Chambers erred in his March 2007 decision that required full consideration of the environmental effects of mountaintop removal and slowed the issuing of new permits.

Judge Chambers had ruled that the U.S. Army Corps of Engineers violated the Clean Water Act in issuing permits for four mountaintop removal coal operations.

The appeals court concluded that Judge Chambers did not properly defer to the Corps' interpretation of its own rules when granting Clean Water Act, CWA, permits for the coal mines.

"In matters involving complex predictions based on special expertise, a reviewing court must generally be at its most deferential," wrote Judge Roget Gregory on behalf of himself and Judge Dennis Shedd.

Judge M. Blane Michael dissented from parts of the decision that found the Corps had rightly concluded the mining operations in question would cause no significant environmental degradation.

"Rather than basing its decision on the (binding) language of the regulations," Judge Michael wrote, "the majority focuses instead on the Corps' compliance with an internal guidance document that is at odds with the regulations' clear requirements. The effect is to completely undermine the goal of mitigation: replacement of what is being lost."

"Because the Corps has offered no basis on which to conclude that the environmental impacts of the valley fill projects as mitigated will be insignificant," Judge Michael wrote, "this court should reject the mitigation as inadequate under the CWA and NEPA [the National Environmental Policy Act]."

Catenary Coal Company's mountaintop removal operation on Kayford Mountain, West Virginia. January 2006. (Photo by Vivian Stockman courtesy Ohio Valley Environmental Coalition; flyover courtesy SouthWings)

Environmental groups say the appeals court decision will allow up to 90 more mountain peaks to be removed by coal mining operations.

They argue that this form of mining poisons drinking water, lays waste to wildlife habitat, increases the risk of flooding and wipes out entire communities.

"Today the coal industry – aided by the Bush administration – is allowing our water to be poisoned," said Judy Bonds of Coal River Mountain Watch. "Tomorrow it will be the East Coast's water supply as the mining discharges will reach downstream water sources."

"Aside from the people, the mountains and streams of West Virginia are two of our greatest assets that should be protected fervently for the benefit of future generations," said Janet Keating, executive director of the Ohio Valley Environmental Coalition.

"We believe the decision is wrong on the law and the science," said Steve Roady, Earthjustice attorney who represented the environmental groups. "This fight is not over until mountaintop removal mining is over. We will continue to litigate and in addition, the new administration must take immediate steps to curb the terrible practice of mountaintop removal mining and undo the mistakes of the past."

In December 2008 the Bush administration repealed a rule requiring buffer zones around streams where wastes from mountaintop removal could not be dumped.

With repeal of the rule, coal companies are now able to dump tons of mining waste into streams without violating the Clean Water Act.

"Either Congress or the Obama administration need to reinstate the Stream Buffer Zone rule and to pass the Clean Water Protection Act," said Tierra Curry, conservation biologist with the Center for Biological Diversity. "But better yet, mountaintop removal should be prohibited and the burning of coal immediately phased out to save the planet from dangerous climate change."

Since mountaintop removal coal mining began in 1970, an estimated 1.5 million acres of hardwood forest have been lost, over 470 mountaintops have been blasted, and 1,200 miles of Appalachian streams have been buried.

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