Victory in Leeco Mines Case

Earthjustice and its partners—Kentuckians for the Commonwealth, Sierra Club, Appalachian Mountain Advocates, and the Appalachian Citizens Law Center—just won a small victory with potentially big implications.

The Sixth Circuit Court of Appeals upheld an injunction we won in September that saved miles of mountain streams from destruction at the proposed Stacy Branch mountaintop removal coal mine near Vicco, Kentucky. The corporation behind the mine, Leeco, Inc., asked the Sixth Circuit to let it start mining in the streams before the court issues a final decision on whether the mining is legal. That could have rendered the whole lawsuit moot. Yesterday, the court sided with us and said no.

In the main case, meanwhile, the Obama administration continues to defend its decision to ignore public health when it permits mountaintop removal mines like this one. The Army Corps of Engineers, the federal agency that approved the mine, made a pretty startling admission in the brief it filed earlier this month, saying it doesn’t dispute that mountaintop removal coal mining could be causing cancer, birth defects, and other serious diseases across Appalachia.

“Plaintiffs’ concerns about the general environmental effects of coal mining on human health may be legitimate,” the government’s brief says. The government even acknowledges the extensive scientific evidence linking mountaintop removal coal mining with increased incidence of disease. So what is the Obama administration’s theory for why it can ignore these risks when deciding whether to permit a mine? It’s not their problem. They’re going to leave the public health consequences of coal mining up to the Commonwealth of Kentucky.

There are too many problems with this argument to discuss here. So I’ll just mention two of the most glaring. (For more, see our Reply Brief, filed Tuesday.) First, Kentucky isn’t doing anything about these health problems either, and the federal government doesn’t even claim they are. In fact, no government agencies—zero—are looking out for public health in the permitting of mountaintop removal coal mines.

Second, the federal government is required by law to determine, before it grants a permit for this kind of coal mining, that the activity is in the public interest. So the Army Corps examines coal production, tax revenue and “energy security,” and counts them all as benefits of the mine.

Notice anything missing? There’s nothing about public health costs. The government says public health is “beyond the scope” of its decision. In other words, benefits count, but not costs. As a matter of public policy, this is amateurish. As a matter of public health, it’s unconscionable. As a matter of law, it’s indefensible. We hope the Sixth Circuit will agree.

In his inauguration speech just a year ago, President Obama proclaimed that our national journey toward freedom and justice will not be complete until children in Appalachia know they are safe from harm. We can’t help noticing the irony of a president who makes healthcare a top priority while the agencies in his administration refuse to consider harmful health impacts of coal mining in the face of a substantial body of scientific evidence.