A federal court late last Friday ruled that the U.S. Army Corps of Engineers violated the law by issuing permits that permanently buried vital headwater streams near five mountaintop removal mines in West Virginia. The Corps failed to demonstrate that mountaintop removal mining valley fills can comply with the Clean Water Act without strict limits on the destruction of streams and rivers.
Mountaintop removal mining is an extremely destructive form of mining that has already permanently buried more than 1,200 miles of streams in West Virginia and other states. In September 2005, Earthjustice and the Appalachian Center for the Economy & the Environment, on behalf of the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch challenged five West Virginia mountaintop removal permits. The U.S. District Court for the Southern District of West Virginia today found those permits violate the Clean Water Act. The judge ordered the Corps of Engineers to go back and comply with the law.
"Today's decision puts in doubt the Corps' ability to permit mountaintop removal mines without wholesale destruction to these vital headwater streams," Earthjustice attorney Steve Roady said.
The Corps withdrew these permits for a period after environmental groups filed their challenge, but it still could not come back with permits that complied with the law.
"The Corps has not done its job," said Joe Lovett, attorney for the Appalachian Center for the Economy & the Environment. "The court said today the Corps must go back and do its job right, but the Corps has had every opportunity to prove that mountaintop removal mining can be done without destroying entire landscapes. It has not shown this to be true."
The lawsuit contended that the Corps violated the Clean Water Act and the National Environmental Policy Act (NEPA) by claiming these mines will cause "no significant impact." By making this claim, the agency ignored mountains of science and studies that have confirmed the fairly obvious fact that blowing up mountains and burying streams permanently harms the environment.
"To date the Corps has provided no scientific basis -- no real evidence of any kind -- upon which it bases its decisions to permit this permanent destruction of streams and headwaters or that this destruction can simply be 'fixed' through mitigation," added Roady.
The court's decision confirmed as much: "The Corps believes that once the ditches are connected and channels reshaped, they will transform into streams and supply the same structure and functions as the destroyed streams. However, the Corps offers little experience or scientific support for this belief. The Corp's witnesses . . . conceded that the Corps does not know of any successful stream creation projects in the Appalachian region," wrote U.S. District Judge Robert S. Chambers.
Mountaintop removal is destroying hundreds of miles of irreplaceable Appalachian streams with mining waste and debris. This extremely destructive form of coal mining is drastically altering the natural resources and heritage of this important region of the country, permanently destroying forests, mountains, and polluting streams in communities across the region.
"We hope the Corps of Engineers finally recognizes the fact that approving these mountaintop removal mining permits does nothing to protect our environment, and protect our communities," said Chuck Nelson, a member of the Ohio Valley Environmental Coalition. "The Corps has been violating the law by allowing the coal companies to mine under illegal permits that put our local economy at risk."
One homeowner from Sylvester, WV, testified at a recent Department of Interior hearing that the value of her home has dropped from $144,000 to below $12,000 as a result of damage from and proximity to a mountaintop removal mining site.
"Mountaintop removal mining is a callous, irresponsible, egregious method of mining coal. It creates false prosperity -- enriching the few at a great cost to large areas of Appalachian people and the environment," said Janice A. Nease, Executive Director of Coal River Mountain Watch.
Less than 5% of the flattened areas left after mountaintop removal mining is used for an economic development purpose. Rather, what is usually left after mountaintop removal is a barren, flattened, utterly destroyed landscape with no useful purpose, no forests, no streams and no chance for regeneration for hundreds of years, if ever.
"The Army Corps of Engineers has inexplicably reasoned that the environmental damages caused by these mines and mountaintop removal coal mining across the region are insignificant," said Cindy Rank of the West Virginia Highlands Conservancy. "We are overjoyed to see the court has agreed with our arguments."
Steve Roady / Jennifer Chavez, Earthjustice, (202) 667-4500
Joe Lovett, Appalachian Center for the Economy and the Environment, (304) 645-9006
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.