Update: On April 23, 2013, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency’s legal authority to veto a mining permit that the U.S. Army Corps of Engineers had issued.
The decision reverses a lower court’s contrary ruling, and is a major blow to the coal industry’s attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia.
The case will now go back to the D.C. District Court for briefing on other claims. Read more.
In January 2011, the U.S. Environmental Protection Agency took an historic step by vetoing the water pollution permit issued by the Army Corps of Engineers for the Spruce No. 1 Mine project in West Virginia, one of the largest mountaintop removal mines ever proposed in Appalachia.
The EPA's decision not only stopped a mountaintop mine that would have destroyed more than seven miles of vital streams and more than 2,000 mountain acres in an important part of Appalachia, but it also helped to insure the basic legal protections for the health, livelihood and future of communities impacted by mountaintop removal mining.
Listen to the podcasts below to hear how the EPA's decision has impacted our partners in Appalachia, and their thoughts on the mischaracterizations about this decision from politicians and coal industry lobbyists.
Note: The audio clips below were recorded at a press telebriefing hosted by Earthjustice on January 19, 2011, following the EPA's Spruce Mine decision.
Transcript: I want to first of all acknowledge the long years of work by lawyers and experts and mountain residents who have gone to the EPA up in DC and invited the EPA here, and talked to the regional offices of the EPA over the years to reach this final decision. They did that by telling their stories of how MTR is affecting their health. I think it kind of culminated in the event called Appalachia Rising that was held last year where there was a conference in DC and meetings with the EPA and then that fantastic march. I think everybody that participated in any of that needs to be thanked.
I think the EPA needs to be acknowledged that this was a major step forward, and they did so in the face of the attacks that are going to be coming at them in this new Congress. But it is a major step forward; it is not the end. I think it's very important that we recognize that today mountains are still being blown up. Today, explosions are still happening in Appalachia. And we need to ultimately take the approach not of permit by permit by permit, but a total abolition of the practice of mountaintop removal coal mining. And that is the ultimate solution to this environmental injustice.
MTR, as it's been mentioned, impacts people's health, and it also impacts the physical environment in West Virginia. But it also has an economic impact and it's a negative economic impact in that the practice of mountaintop removal destroys the opportunity for future economic growth in the areas in which it is done. Where are you going to locate any business of any kind when you can't drink the water and you can't enjoy the natural beauty? I think that's very important to remember that while public officials and the coal industry want to tout the economic value of mountaintop removal, that in fact it has no economic value. What it has is an economic cost.
Transcript: I believe and I hope that the Spruce decision ushers in a new era of civility in mountain communities beneath and near mountaintop removal sites. I think we need to keep in mind that mountaintop removal is an unprecedented method of coal extraction with far greater impacts than traditional strip mining. If we just consider that nearly every day, six days a week for ten years plus now, approximately 5.9 million pounds of ammonia nitrate and diesel fuel explosives have been set off over communities in eastern Kentucky and southern West Virginia. I think that we're starting to see the long term effects of mountaintop removal on the health of our people in these communities. Here on Coal River there is an accelerated rate of cancer in the past two years. And in particular in the last year, I would say, we are seeing that every week someone else has cancer.
We need to keep in mind, and I hope that our politicians would keep in mind, that the EPA cited health concerns in revoking the Spruce permit. It seems to me that our representatives should be acknowledging the health effects that mountaintop removal poses on mountain communities and they should be calling for an immediate moratorium on all mountaintop removal operations. They should be calling for federal assistance for workers' retraining and some financial assistance for people who may lose their jobs, but I believe that the health effects are far greater and far more important than a job. The politicians need to work for the people and come to the aid of these communities that are being harmed by mountaintop removal.
Transcript: Not only is this an environmental justice issue, but more so it is a human rights issue. West Virginia elected officials have a lackadaisical attitude when it comes to investigating why the health of our state's people is so poor. After all, poor health costs our state in both compensated and uncompensated health care, prescription drug costs, days lost from work and school, and children who will not develop to their full adult potential. Yet both the governor and many members of the legislature have blatantly ignored the recent studies focusing on the health and the well-being of the coal field residents. The answer to that is that their campaign contributions and the coal industry discourage them from investigating.
A Harvard University study released about West Virginia affordable healthcare noted that women in four West Virginia counties have life expectancies in the lowest one percentile nationwide. On the average these women are losing a decade of their lives. In the respected journal Public Health Reports, a study concluded that while the coal industry generates about $8 billion in economic activity per year in Appalachia, the societal costs in terms of premature deaths across the region is a conservative estimate of $42 billion. That's five times as much. The EPA is doing its job by applying the law and the science here, something our regulatory agency has failed to do. Now these other pending permits need the same scrutiny as the Spruce Mine permit.
Transcript: As far as we're concerned, this recent decision by EPA is a culmination of everything we've been working toward for the past over a dozen years now. I personally was on the Del Tex mountaintop removal site along with several others in 1994 and the Del-Tex is right across the road from the Spruce permit area. And I know it took my breath away to see what looked like a mini Grand Canyon brought to the hillsides of West Virginia and knowing the people that lived down below had no idea how significant it was because you couldn't see it from the road. And over the course of the last 12 years we had 10 brave citizens joining in the lawsuit in 1998 from Boone, Mingo and Logan counties, and today fortunately we have to times that in terms of numbers of people directly impacted.
Unfortunately, we've had 10 times the disruption to lives and the destruction of water resources and livelihoods in those same areas. But we do see that finally EPA has taken the step that I think should've been taken 10 or 12 years ago in terms of looking at the permits. We knew at that time, because we were researching them and drawing rough maps of where they were, that the culmination, the cumulative impact of all of these mines was going to be devastating to the state.
And as much as it was relatively difficult at that time to predict how severe and extensive these impacts would be, at least EPA now has proof over these past 10 or 12 years and documentation of this serious impact to the land, to the environment, to the people and the communities around. And unlike what our acting governor and our new senator and several others are saying, this shouldn't come as a surprise to them. They've been party to conversations all along the line these past 10 to 12 years as to why this mine and many others like Joe (Lovett) mentioned were so important because they're doing such harm to so much of our state. The additional damage, it's just … it's appalling how much has had to happen before EPA has finally been able to accumulate enough information, documentation and political will to go ahead and do what should have been done ten years ago.
Transcript: We live here in south West Virginia, and I wanted to say that we commend the EPA for standing up against big coal and fighting for our communities because we are fighting the same problem here that they are in West Virginia and Kentucky. People's lives are at jeopardy. Just like in West Virginia and Kentucky, we see accelerated rates of cancer and impacts from coal extraction. We're having … state regulatory agencies have been holding hearings for the past three years on our poisoned waterways, yet I've yet to see any action done by them. We need action from the EPA. We need laws in place and we need to end mountaintop removal today because it's killing people. It's nothing but for profit and not for anything else.
Transcript: One of the things that a number of the industry groups and politicians have raised about the Spruce veto is making a lot of hay over the issue that this was a previously issued permit and not a proposed permit. But if you look at the EPA's authority under the Clean Water Act under Section 404(c), in the statute itself as well as the implementing regulations, it's absolutely 100 percent clear that the EPA has the authority to veto a permit whenever, and the statute uses the term whenever, whenever the administrators determine that there will be significant adverse affects on the aquatic environment. So the main talking point that I've seen in a lot of the politicians' and industry statements that this is somehow outside of EPA's authority because this permit had already been issued by the court is just completely out of bounds. The EPA addresses this well in the document accompanying the veto where it responds to the public comments that it received on this topic. So I think that's something that people should be aware of. Section 404(c) of the Clean Water Act is one paragraph, it's simple to look up and read, and I think that anyone who does so will see very clearly that the EPA has the authority to do this.
Transcript: EPA, it's important to realize, has been critical of this permit since it was issued, has remained critical and has finally vetoed the permit, something that really all of us expected. Not only has EPA found this permit to be illegal when it was subjected to scrutiny, but a federal judge in 1999 stopped a prior iteration of this permit from going forward.
There is a lot that will be said about the size of this permit. It is a large permit. It's maybe the largest individual permit issued in the region, but it's not unique. It's only large in the sense that it was a lot of acreage permitted at one time. There are many mining complexes in the state bigger than the Spruce Mine would've been and all of those permits have impacts similar to or even worse than those of the Spruce Mine. And we will challenge those in court and we expect EPA to veto other projects as well as this one because they violate the Clean Water Act and harm the environment and, we think, harm the economies of the region just as the Spruce Mine does. So the Spruce Mine, though it has been important for us because it was where we started, isn't a unique mine. And I think that's, for me, the most important message today is that this is an important decision but we hope it's the first of many.
Transcript: I live in the Cumberland Mountains where much of the surface mining in Tennessee happens, but that's still pretty far away from where Spruce Mine is. So last night when I was thinking about what EPA's decision means for us in Appalachia, I decided to pull Spruce Mine up on Google Earth to get a higher perspective. The images, even though they are many miles above the earth, show that the landscape of Logan county has already been drastically altered by surface mining. But what the satellite can't show us is how much that scale of mining fractures communities and causes all kinds of suffering for the people who live there. Mining laws and regulations are meant to keep our communities intact and to keep our water safe. But for that system to work, the laws need to be enforced and decisions based on good science and environmental justice need to be made at every step in the permitting process.
You know, it's not like we're asking for the moon here. All we've ever wanted from EPA is for them to do their job. And when they just said "no" to the Spruce Mine permit, we think they not only did their job but made a decision that reflects good science and justice for people and for nature.
Transcript: The EPA and the national media should know that acting Governor Tomblin and our other politicians do not speak for the people of West Virginia who have endured the misery and suffering that mountaintop removal provides. Our congressional delegation, including Senators Joe Manchin (D-WV) and Jay Rockefeller (D-WV) and Representative Nick Rahall (D-WV) have heard our pleas to end this threat to our lives, health, homes and communities, but have taken no action for our protection. Instead they've continued to promote the destruction of our mountains, water and communities while telling us we need to sacrifice and that we must accept the balance as defined by the coal industry.
While Coal River Mountain Watch is pleased that the EPA made the correct decision to veto this permit, we urge them to go further. They need to veto all mountaintop removal permits and take action to enforce the law in West Virginia.
We expect that the EPA should ignore the threats to them by the political folks who would like to see the EPA disbanded completely. We know that the Spruce decision is not in itself going to end mountaintop removal. And we know that the Spruce decision in itself is not going to be the economic catastrophe that the acting governor has predicted. So we applaud the EPA's decision, but we have no illusions that it is the silver bullet that we would like.