Kayford Mountain in West Virginia - photo by Vivian Stockman, courtesy of Ohio Valley Environmental Coalition

Yesterday the Army Corps of Engineers announced that it is suspending the use of nationwide permits for mountaintop removal coal mining.

Under U.S. law, companies who wish to engage in mountaintop removal mining—this is, to use explosives to blow off the top of mountains to get to the coal underneath, and then dispose of the rubble in streams and waterways—need to get a permit from the Army Corps of Engineers to do so. This permit is actually a Clean Water Act permit, and the granting of it holds that a company is abiding by the Clean Water Act, the cornerstone of water protection in the United States, and is following its requirements when it dumps its mining waste in the valley streams and waterways.

In 1982, the Army Corps of engineers established a nationwide permit (NWA Permit 21) for mountaintop removal mining operations, most of which are in Appalachia. This was a generalized, fast-track process that waived the Clean Water Act permit application for companies and automatically granted them permits. Instead of applying and going through a normal permitting process that assesses each company's impact on the waterways and streams, this Corps permit acted as a blind rubber stamp, outright allowing companies to engage in mountaintop-removal mining without proving that Clean Water Act requirements will indeed be met.

In Appalachia, moving mountains is easy. What's hard is keeping them where they are. Coal companies have used dynamite's muscle to blast hundreds of the earth's oldest summits into neighboring valleys, permanently altering the landscape. But two recent developments are shaking the foundations of mountaintop removal mining, signaling that perhaps, at long last, what's moving is the mountain of science and law that compels the end of this destructive practice.

In late March, the Environmental Protection Agency took dramatic action in proposing to veto a permit issued by the U.S. Army Corps of Engineers for the Spruce No. 1 mine in West Virginia—one of the largest mountaintop removal projects ever approved—on the grounds that mine operations would violate the Clean Water Act. The action was presaged by an Earthjustice lawsuit filed in 2007 that challenged approval of a Clean Water Act permit for the mine for failing to follow science and the law.

If the EPA does veto the permit, the agency's invocation of the Clean Water Act to curtail operations at the Spruce mine will be an important victory. It could have broader repercussions on mountaintop removal in general. (The agency is currently accepting public comments on the veto proposal. You can take action by telling EPA to follow through with the veto and enforce the Clean Water Act.)

But the good news doesn't end there.

The New York Times today reported in the next chapter of their exceptional "Toxic Waters" series that:

"Thousands of the nation's largest water polluters are outside the Clean Water Act's reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.

"As a result, some businesses are declaring that the law no longer applpies to them. And pollution rates are rising."

The saddest part of this legal debacle is that the streams, lakes and rivers losing federal protection also provide drinking water for approximately 117 million (or more than 1 in 3) Americans, according to the U.S. Environmental Protection Agency. Polluters are free to dump carcinogens, bacteria and even oil directly into our waters with little or no recourse. This all stems from two misguided rulings by the Supreme Court that cast doubt upon what waters should be protected under federal law. Their ruling on "jurisdiction" left thousands of streams, lakes and rivers unprotected; EPA officials estimate that "as many as 45 percent of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is overwhelmingly difficult."

Scene from the San Francisco Bay Delta

Some top stories from the past week at Earthjustice…

It’s a rainy week here in Oakland, as a storm system bestows California with some much-needed H2O. Our short supply of water has meant trouble for salmon. A new video by Salmon Water Now illuminates startling alliances between big agribusiness and the political interests controlling water and the fate of salmon in the San Francisco Bay Delta.

A wholly different marine creature in peril will get some help at last. The NMFS announced it will take measures to protect false killer whales from the commercial longline fishing industry, following years of Earthjustice litigation. Rarely seen by humans, false killer whales are close relations of dolphins.

Mercury pollution is a big problem for aquatic life (and people who eat fish), and a lot of it comes from medical waste incinerators. In September, the EPA set groundbreaking rules that significantly reduce air pollution from this source, but now these rules are being challenged in court. Earthjustice has intervened in the lawsuit.

And, the toxic green slime clogging Florida’s waterways might finally loosen its hold, thanks to a historic first step by the EPA to limit fertilizer, animal waste and sewage pollution in the state. While the proposed limits aren’t as stringent as they could be, they’re a big improvement.