"This case is of great national importance," said Earthjustice attorney Steve Roady. "The Corps of Engineers is ripping the heart out of the Clean Water Act by granting permits that allow coal companies to permanently entomb vital streams in the rubble of exploded mountains. The destruction caused by mountaintop removal mining is enormous and the adverse impacts on local communities are profound. We're asking the Supreme Court to hold the Corps accountable."
Earthjustice and the Appalachian Center for the Economy & the Environment filed this lawsuit challenging several West Virginia mountaintop removal permits in September 2005 on behalf of the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch. The lawsuit challenged the Corps' violation of the Clean Water Act by authorizing the permits to fill 23 valleys and 13 miles of mountain streams in southern West Virginia without first performing even the most basic, legally required assessment of the harm that would occur when the streams are buried forever.
"The Supreme Court must intervene in a case that strives to provide essential protections for Appalachian mountain streams under the Clean Water Act," said Joe Lovett, executive director of the Appalachian Center for the Economy & the Environment. "The Corps has not adequately controlled mountaintop mining removal activity and has allowed for the wholesale destruction of our vital waterways."
The U.S. District Court for the Southern District of West Virginia in March 2007 found those permits violated the Clean Water Act. In February, a panel of federal judges in the U.S. Court of Appeals for the Fourth Circuit ruled 2 to 1 in favor of the Corps in the case, with a strong dissent from one judge on the panel. Earthjustice then requested rehearing by the full court of appeals, but in late May, by a close vote of 4 to 3, with 4 additional judges abstaining from the vote, the court denied that petition.
However, two judges filed dissenting opinions, each of which Judge Diana Gribbon Motz joined.
In his dissent, Judge J. Harvie Wilkinson wrote that he voted for the full court of appeals to hear the case because of "the potentially irreversible effects that the permitted operations will have on the Appalachian ecosystem." He concluded: "The requirements of the Clean Water Act are important. . . . Once the ecologies of streams and rivers and bays and oceans turn, they cannot easily be reclaimed. More often than not, the waterway is simply gone for good."
In his dissent from the denial of rehearing, Judge M. Blane Michael, who also had dissented from the panel's decision, explained that: "The ecological impact of filling headwater streams with mining overburden is both profound and irreversible . . . . No permit should issue until the Corps fulfills each distinct obligation under the controlling regulations. And this court should not defer to the Corps until the agency has done its job."
"We're constantly hearing about the decreasing amounts of clean water within our nation as well as 'water wars' between states," said Janet Keating executive director of the Ohio Valley Environmental Coalition. "Yet the coal industry is recklessly burying and polluting our headwater streams under millions of tons of mining waste in central Appalachia. We hope that the Court realizes how vital, urgent and necessary their input is on this matter."
"Scientific studies show time and time again that mountaintop removal does horrible damage to our nation's water supplies," said Vernon Haltom, co-director of Coal River Mountain Watch. "It's now time for the nation's high court to uphold the laws intended to protect our communities from polluting industries that care only for their profit margin."
"In allowing high mountain headwater streams to be filled with waste rock, the Corps has allowed total disruption of the hydrology of hundreds of square miles of ancient mountains and the natural and human lives those ground and surface waters have supported for centuries," said Cindy Rank, chair of the West Virginia Highlands Conservancy Mining Committee. "The future well-being of the region depends on stricter adherence to the nation's environmental laws."
Mountaintop removal mining is a method of strip mining in which coal companies use explosives to blast as much as 800 to 1000 feet off the tops of mountains to reach coal seams underneath. The result is millions of tons of waste rock, dirt, and vegetation dumped into surrounding valleys, burying miles and miles of streams under piles of rubble hundreds of feet deep. Mountaintop removal mining harms not only aquatic ecosystems and water quality, but also destroys hundreds of acres of healthy forests and fish and wildlife habitat, including habitat of threatened and endangered species, when the tops of mountains are blasted away. The Appalachian region has already lost an estimated 2,000 miles of mountain streams to this destructive process—and the Environmental Protection Agency has predicted that this could rise as high as 2,400 miles by the year 2013 if current practices continue.
This practice also devastates Appalachian communities -- in West Virginia, Kentucky, southern Virginia and eastern Tennessee -- and cultures that have existed in these mountains for hundreds of years. Residents of the surrounding communities are threatened by rock slides, catastrophic floods, poisoned water supplies, constant blasting and destroyed property.
The EPA's Environmental Impact Statement on mountaintop removal mining can be found here: http://www.epa.gov/region3/mtntop/eis2005.htm
Pending permits can be searched here: http://www.appalachian-center.org/foia/
A map of permits in West Virginia can be found here: http://www.earthjustice.org/library/maps/westva-mining-permits.pdf
Raviya Ismail, Earthjustice, (202) 667-4500, ext. 221