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Appeals Court Upholds EPA Veto of Spruce No. 1 Mountaintop Removal Mine Permit

Victory: U.S. Court of Appeals for D.C. affirms district court; finds U.S. Environmental Protection Agency reasonably and lawfully decided that huge mountaintop removal mine in WV would cause unacceptable environmental harm
The site of the Spruce No. 1 mine, in West Virginia.

The site of the Spruce No. 1 mine, in West Virginia.

Photo Courtesy of Vivian Stockman / OVEC; Flyover courtesy SouthWings
July 19, 2016
Washington, D.C. —

Today, EPA and Appalachian communities won again in the long legal battle over the Spruce No. 1 mine. The U.S. Court of Appeals for the District of Columbia Circuit upheld the 2011 decision by the head of the U.S. Environmental Protection Agency to block a permit for the mine issued by the U.S. Army Corps of Engineers due to the unacceptable environmental harm it would cause.

Earthjustice and Appalachian Mountain Advocates, submitted an amicus curiae brief in support of EPA on behalf of West Virginia Highlands Conservancy, Coal River Mountain Watch, Ohio Valley Environmental Coalition, and Sierra Club defending the EPA’s decision to veto the permit.

HISTORY:

The legal battle to stop this huge 2,000-acre mine—one of the largest ever proposed in Appalachia—has been ongoing since 1999. It was the first major challenge to mountaintop removal mining brought by individuals and community groups, represented by Appalachian Mountain Advocates and Public Justice.

After a 1999 injunction was issued against the first permit authorization, and after the Corps reissued the permit in 2007 despite EPA concerns, EPA completed an extensive review of new scientific information and 50,000 written public comment letters. Based on that up-to-date scientific understanding of the permanent harm that would result from the destruction and burial of six miles of vital headwater streams, the downstream contamination and resulting ecological damage, and the leveling of 2,000 acres of natural mountaintop, EPA issued a final veto determination in January 2011.

The coal industry and the state of West Virginia challenged the veto, asserting that EPA could only block a permit before issuance—even though the law specifically gives the EPA the authority to veto a mining waste discharge “whenever” it would have adverse environmental impact. A federal district judge sided with the industry, but was overturned by the U.S. Court of Appeals for the D.C. Circuit in 2013. The U.S. Supreme Court declined to take industry’s appeal, making the D.C. Circuit’s decision the last word affirming EPA’s ability to protect clean water, wildlife, and communities.

The case was sent back to the district judge to determine if the EPA’s decision was arbitrary and capricious or unlawful in any other way. The judge ruled the decision was lawful, reasonable and supported by the scientific findings presented in the agency’s 2011 Final Determination. And today, the D.C. Circuit affirmed the district court and rejected another appeal by the coal company.

Read the D.C. Circuit Opinion.

Quotes From Environmental and Community Amicus Groups:

“It’s encouraging to know EPA’s important veto authority and specific denial of the monstrous Spruce No.1 mine have now been affirmed twice by a federal appeals court,” said Cindy Rank of the West Virginia Highlands Conservancy. “Now it’s time for the industry to follow the science, EPA, and courts, and finally recognize what the law requires—we need to protect our waters, natural areas, and mountain communities, not destroy them any longer for the profit of a few coal companies.”

“This ruling closes the final chapter on the devastation that more mountaintop removal mining would cause at the Spruce site,” said Emma Cheuse, attorney with Earthjustice. “The court’s affirmation of EPA’s expert scientific decision to prevent unacceptable environmental harm gives West Virginia communities essential and much-needed protection for local waterways, mountains, and a sustainable way of life that doesn’t depend on blowing up mountains, and we will continue calling on EPA to do more to protect communities.”

"We applaud the court for recognizing EPA's broad authority to protect water quality from extreme practices like mountaintop removal coal mining,” said Ben Luckett, attorney with Appalachian Mountain Advocates. “Going forward, we urge EPA to use its power to protect the people of Appalachia and beyond from having their water supplies further degraded by irresponsible extractive industries."

"The Court’s action today is critical to protecting the people of Appalachia and our water supplies from what would have been one of the most harmful mountaintop removal coal mining sites in the history of our region," said Bill Price, an organizer for the Sierra Club based in West Virginia. "We applaud the Court's decision and urge the EPA to continue putting West Virginian families before dirty polluter profits. Mountaintop removal coal mining prevents the region from obtaining economic justice—the EPA can help by protecting water quality and encouraging sustainable clean energy solutions that take us beyond these destructive mining practices."

“EPA properly relied on over 100 scientific studies to veto a mine the size of downtown Pittsburgh that would have buried one of the last remaining high-quality streams in the Coal River watershed,” said Jim Hecker, attorney with Public Justice who brought and has continued to litigate the case challenging the Corps’ Spruce mine authorization, with Appalachian Mountain Advocates, which was on hold while awaiting today’s decision.

“This is good news that the courts have once again upheld the EPA’s authority to protect streams from mountaintop removal. However, this is only one portion of one site of very many,” said Vernon Haltom, Coal River Mountain Watch. “Mountaintop removal unfortunately continues to cause harm while state and federal agencies too often ignore the deadly public health threat imposed by these operations.”

Read more background on this case.