Appeals court upholds mountaintop removal ruling

By Kyla Asbury | Jan 5, 2017

CHARLESTON – The Fourth U.S. Circuit Court of Appeals has upheld a ruling made by a West Virginia federal judge that coal operators in the state have to comply with water quality standards that limit the amount of pollution allowed in streams.

The ruling was filed Jan. 4.It was an appeal from the U.S. District Court for the Southern District of West Virginia at Charleston. District Judge Robert C. Chambers was presiding over the case when it was in federal court. The appeal was argued on Oct. 27.

The three-judge panel for the appeals court, included Circuit Judges Diana Gribbon Motz and Albert Diaz; and District Judge Gerald Bruce Lee. Motz authored the opinion.

The lawsuit was filed by Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club against Fola Coal Company in 2013 alleging that Fola violated its water pollution discharge permit. The appeals court affirmed Chambers’ 2015 decision that Fola did violate the permit by allowing runoff of high amounts of ionic pollution into the Stillhouse Branch watershed.

“On appeal, Fola makes no contention that the district court erred in finding that Fola’s discharges in fact caused or materially contributed to the biological impairment in Stillhouse Branch,” the decision states. “And Fola does not argue that narrative water quality standards cannot be enforced; it could not do so given that the Supreme Court has held to the contrary.”

Instead, Fola offers brief and largely derivative “process” arguments, Motz wrote.

“A substantial portion of those arguments involve Fola’s mischaracterization of the district court’s careful and detailed fact-finding,” the decision states. “Fola attempts to treat that fact-finding, which of course can only be reversed if clearly erroneous, as ‘rulemaking’ subject to de novo review.”

Fola’s arguments as to why the district court erred in finding that Fola violated its permit, like Fola’s arguments as to the permit’s reach, “uniformly fail,” Motz wrote.

“The court heard extensive expert testimony on the causal relationship between increased conductivity in Appalachian streams and impairment,” the decision states. “The court credited the testimony of accepted experts and an authoritative EPA publication. All concluded that mining activities cause increases in conductivity, which in turn cause impairment.”

The federal court held a trial in the case from Aug. 19 through 22, 2014. In his ruling, Chambers wrote that in multiple ways, the chemical and the biological components of the aquatic ecosystems found in Stillhouse Branch had been significantly adversely affected by Fola’s discharges.

“The water chemistry in this stream has been dramatically altered, containing levels of ionic salts — measured as conductively — which are scientifically proven to be seriously detrimental to aquatic life,” he wrote. “The biological characteristics of the stream have also been significantly injured, in that species diversity — and, in some areas, overall aquatic life abundance — is profoundly reduced. Stillhouse Branch is unquestionably biologically impaired, in violation of West Virginia’s narrative water quality standards, with current WVSCI scores falling well below the threshold score of 68.”

Chambers wrote that losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in the coal mine.

U.S. Court of Appeals for the Fourth Circuit case number: 16-1024

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