Enviros Win Injunction Against Mountaintop Removal Mining

U.S. District Judge Joseph Goodwin ruled that the corps had not fully examined the cumulative impacts of this streamlined procedure on the approvals authorizing mountaintop removal mines that blast away the tops of mountains to reach the seams of coal and then fill the valleys below with tons of waste rock.

"The loss of thousands of miles of streams in Appalachia over the past twenty years ... and the loss of over 200 miles of streams in West Virginia alone vividly illustrates the impacts associated with mountaintop mining," Goodwin wrote in his opinion.

While Judge Goodwin's ruling and injunction apply only within the boundaries of the U.S. District Court's Southern District of West Virginia, but within the district the corps cannot authorize new mines and the mine operators who intervened in the case are restricted.

The judge sided with the Natural Resources Defense Council, the Ohio Valley Environmental Coalition and Coal River Mountain Watch who brought the case to court. They argued that the mining companies should not be permitted to dump mine waste into U.S. waters.

"The court's decision is a victory for our irreplaceable waterways. A nationwide permit to dump coal mine waste into our waters would have been a recipe for environmental disaster," said Jon Devine, senior attorney for NRDC. "This important win will help protect Appalachian mountains and streams from harmful mining practices."

A mountaintop removal coal mining operation in southern West Virginia, May 2003. (Photo by Vivian Stockman courtesy Ohio Valley Environmental Coalition)

The court found that the Corps had acted unreasonably in two main respects, Devine explains. First, it ignored the past impacts of similar mining in deciding not to prepare an environmental impact statement under the National Environmental Policy Act.

Second, the Corps assumed, without justification, that the impacts to streams and other water bodies would be adequately offset by "mitigation" measures, such as constructing drainage channels to replace destroyed natural streams.

The court found that the Corps did not have an adequate plan to monitor mitigation efforts or require corrective action.

"Mitigation is the centerpiece of the Corps' claim that mountaintop removal and valley fills have cumulatively insignificant environmental effects," said Jim Hecker, environmental enforcement director for the public interest law firm Public Justice, which represented the plaintiff groups together with the Appalachian Center for the Economy & the Environment.

"The Corps claims that it can achieve 100 percent success in mitigating the burial of streams by creating new streams elsewhere," said Hecker. "The court correctly found that this claim is an 'unsupported belief' and a 'mere promise' that has no factual or scientific basis."

"In two recent letters objecting to similar Corps permits, EPA told the Corps the same thing," he said.

"Judge Goodwin has reaffirmed that science and law must take precedence over dirty coal profits," said Vernon Haltom, co-director at Coal River Mountain Watch. "Coal companies have assaulted our homes, communities, mountains, and life-giving water with impunity for far too long."

Haltom said, "We hope the Manchin administration will also now begin to enforce the laws that are intended to protect our communities and resources."

Janet Keating, executive director of the Ohio Valley Environmental Coalition based in Huntington, West Virginia applauded the judge's ruling.

"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," she said.

Judge Goodwin's ruling is the latest of several setbacks for mountaintop removal coal mining. Last week, the U.S. Environmental Protection Agency announced suspension and review of two mountaintop removal mining permits in Appalachia to ensure they supported by science. The agency also will review hundreds of other mountaintop coal mining permits to evaluate their impact on streams and wetlands.

Then there are U.S. Senators Benjamin Cardin, a Maryland Democrat, and Lamar Alexander, a Tennessee Republican, who want to stop mountaintop removal mining.

On March 25, they introduced legislation that would prohibit the dumping of mining waste into streams. The Appalachia Restoration Act would amend the Clean Water Act to prevent the dumping of what is known as "excess spoil" from mountaintop mining into streams and rivers.

More than one million acres of Appalachia have already been affected by this practice, Senator Alexander says, "An estimated 1,200 miles of headwater streams have been buried under tons of mining wastes. More than 500 mountains have been impacted, and homes have been ruined and drinking water supplies contaminated."

"My goal is to put a stop to one of the most destructive mining practices that has already destroyed some of America's most beautiful and ecologically significant regions," said Cardin, who chairs the Water and Wildlife Subcommittee of the Senate Committee on Environment and Public Works. "This legislation will put a stop to the smothering of our nation's streams and water systems and will restore the Clean Water Act to its original intent."

"Coal is an essential part of our energy future, but it is not necessary to destroy our mountaintops in order to have enough coal," said Senator Alexander, a member of the Water and Wildlife Subcommittee.

"Millions of tourists spend tens of millions of dollars in Tennessee every year to enjoy the natural beauty of our mountains," said Alexander, "a beauty that, for me, and I believe for most Tennesseans, makes us proud to live here."

Mountaintop mining produces less than five percent of the coal mined in the United States, he said. This bill does not ban other methods of coal mining, but instead would prevent this particular type of coal mining.

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