Coal industry gets boost from appeals court ruling

By Kelly Holleran | Feb 23, 2009

RICHMOND -- In a blow to environmentalists and a huge victory for the coal mining industry, a federal appeals court recently overturned a lower court's ruling that called for more extensive environmental review of mountaintop removal sites.

The Fourth U.S. Circuit Court of Appeals in Richmond, Va., ruled Feb. 13 that the Army Corps of Engineers is allowed to issue Clean Water Act permits without further review.

The issue arises under the Clean Water Act because coal companies blast away the peaks of mountaintops, then dump the rocks and debris from the mountaintops to valleys where streams are located.

The Ohio Valley Environmental Coalition filed suit in September 2005 shortly after the Corps issued an individual valley fill permit, under its CWA 404 authority, to the Aracoma Coal Company.

OVEC went on to amend its complaint several times to include permits the Corps issued after the complaint was filed.

"According to OVEC, the Corps' 404 permit is a permit for the entire valley fill, down to the last shovelful of dirt at the edge of the valley," the Circuit Court's opinion states. "But 404 is itself unambiguous about what the Corps is authorized to permit under the CWA: the Corps 'may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites."

U.S. District Court Judge Chuck Chambers originally rescinded four permits the Corps issued that allowed West Virginia streams to be filled in conjunction with area surface coal mining operations.

But the federal appeals court reversed Chambers' order, allowing the permits to be validated.

West Virginia Coal Association President Bill Raney praised the decision and said it would bring stability to the coal-mining industry.

"It's so reassuring to have the stability of the appeals court that recognizes the professionalism of the Corps of Engineers," he told The Associated Press. "They really protected the jobs of the miners."

Mining company Massey Energy also lauded the ruling, which involved permits for its mines.

"This should put an end to much of the uncertainty regarding the issuance of surface mine permits," Jeff Gillenwater, Massey spokesman, said in an e-mail to The AP.

However, OVEC argues the Feb. 13 ruling will authorize mining companies to remove coal from mountaintops without minimizing stream destruction or conducting adequate environmental reviews. In addition, the organization says Appalachia could be facing up to 90 mountaintop removal coal-mining operations.

"We are deeply disappointed in the court's decision, but have great regard for the fine legal team who held the course for many years," said Janet Keating, executive director of the Huntington-based Ohio Valley Environmental Coalition. "Additionally, we are grateful to all the courageous people of central Appalachia who continue to organize, stand firm in their convictions, and speak out against mountaintop removal mining, despite open hostility and intimidation from those who support this ungodly mining technique. 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."

Because of mountaintop removal, waters are being poisoned, the risks of floods are increased and entire communities are being wiped out, Judy Bonds of Coal River Mountain Watch said in a press release.

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

The coal companies claim the decision will have a huge economic impact on states such as West Virginia where many people are dependent on the coal industry for jobs.

"Naturally people will be looking at what it says for environmental policy going forward," National Mining Association spokesman Luke Popovich told The AP. "I think it's also potentially very significant economic news and very good for the region."

As coal companies have been cutting production, closing mines and laying off workers due to weak demand, consumers are facing higher electric rates. However, prices could drop due in part to the decision.

"We think this could easily free up more supply," Popovich said.

But the legal battle may not be over, and OVEC's efforts to educate the public on the hazards of mining will continue, Keating said.

"As we consider whether to appeal this decision to full 4th Circuit or the U.S. Supreme Court, we will redouble our efforts in organizing, educating the public on the national disgrace that is mountaintop removal and working for a legislative ban on this extreme form of coal mining," she said.

More News

The Record Network