Today, a federal appeals court sided with the U.S. Environmental Protection Agency (EPA) and a large coalition of citizen groups in upholding an Obama administration policy to scrutinize pollution from severe mountaintop removal mining in Appalachia. The U.S. Court of Appeals for the District of Columbia Circuit ruled against the National Mining Association, the State of West Virginia, the Commonwealth of Kentucky, and other coal industry groups, who brought the case against the EPA and the Army Corps of Engineers.

The EPA policies were based on recent scientific studies showing that pollution from mountaintop removal mining in Appalachia is likely to degrade water quality in violation of federal Clean Water Act standards. One of those studies (Pond 2008) found that nine out of every 10 streams downstream from mountaintop removal mining were impaired. Another study found elevated levels of highly toxic selenium in streams downstream from mountaintop removal mining sites.

The coalition was represented by Earthjustice and Appalachian Mountain Advocates. The groups included seven conservation and social justice groups—Coal River Mountain Watch (WV), Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Kentuckians For The Commonwealth, Southern Appalachian Mountain Stewards (VA), Sierra Club, and Statewide Organizing for Community eMpowerment (TN)—who intervened in the lawsuit to support two initiatives:

1. Guidance the EPA provided to its staff on the need to address evidence of serious harm caused by mountaintop removal mining and follow the Clean Water Act; and
2. Interagency review of the worst-of-the-worst pending permit applications.

The court held that the EPA and the U.S. Army Corps of Engineers are fully authorized to protect communities from mountaintop removal mining in this way and held that the guidance is not currently reviewable action.

The following are statements by the groups behind this victory for Appalachia:

Said Emma Cheuse, Earthjustice attorney, “The EPA did its job when it directed its staff to finally follow the law and science, and start protecting Appalachian waters and communities from mountaintop removal mining, which is associated with higher cancer, birth defects, and early death for people living nearby. The coal industry continually fights for free rein to blow up mountains and dump waste all over Appalachia, and we’re glad to see clean water and healthy communities triumph today.”

Said Jim Hecker, attorney with Public Justice: “All three of the district court decisions that the mining industry trumpeted several years ago as examples of EPA ‘overreach’—the decisions overturning EPA’s Spruce Mine veto, the Enhanced Coordination procedure, and the conductivity guidance document—have now been reversed and EPA’s position has been upheld.”

"As baffling as it was that the Mining Association and representatives of several state governments challenged the effort by EPA and the Corps to agree upon a process by which they work together on permitting actions, it is ever so much more gratifying today that the appeals court affirmed the legality, not to mention the wisdom, of such interaction," said Cindy Rank of the West Virginia Highlands Conservancy.

”Now it’s time for EPA to get to work,” said Mary Anne Hitt, Director of Sierra Club’s Beyond Coal Campaign. “Today’s court ruling only reinforces what we already knew; EPA has a critical role to play in ensuring the safety of Appalachian waterways. States simply cannot do this job themselves and groups like the National Mining Association will stop at nothing to ensure their clients don’t have to face responsibility for pollution. Appalachian rivers, streams and communities have a fighting chance now that EPA is free to do its job." 

“This is an important step in protecting our mountain streams from the toxic discharge from mountain top removal operations and in protecting the Appalachian people from further health impacts from this destructive practice,” said Jane Branham of Virginia-based Southern Appalachian Mountain Stewards. “We are so relieved by this court decision because historically, our state regulatory agencies have failed to enforce existing laws. We have needed this stronger oversight by the EPA to ensure that states protect Appalachian communities.”

“By refusing to use the EPA Guidance on Conductivity and by being a party to the suit against the enforcement of the Clean Water Act, Kentucky officials have made it perfectly clear that allowing the pollution to continue is more important to them than protecting the health of Kentuckians and our communities,” said Doug Doerrfeld of Kentuckians For The Commonwealth. “This runs counter to other efforts, such as the governor’s SOAR initiative, to create a better future for the region. This federal court decision is a victory for the clean water that is essential to southeastern Kentucky’s bright future.”

“Mountaintop removal has had a devastating impact on communities and on water quality,” said Dianne Bady of West Virginia-based Ohio Valley Environmental Coalition. “We're so thankful that EPA has taken some positive steps and that the court has upheld EPA's plans.”

“For people who live near mountaintop removal mines there was never a question that it caused harm to people and nature,” said Cathie Bird, a member of Tennessee-based Statewide Organizing for Community eMpowerment. “Then scientific studies began to bear this out. Now the EPA’s science-based guidance has survived an attack from the industry. The court has ruled in support of the Clean Water Act and its role in protection of Appalachian communities.”

"This is a good ruling that allows the EPA to do its job, but it does not mean that mountaintop removal is banned or that coal is 'over.' It does not mean that failed state agencies such as the West Virginia Dept. of Environmental Protection will suddenly start doing their jobs, or that they will stop granting mountaintop removal permits,” said Vernon Haltom of the West Virginia-based Coal River Mountain Watch. “We need to address the deadly human health impacts of mountaintop removal and halt new permits by passing the Appalachian Communities Health Emergency (ACHE) Act, HR 526."

Read the court decision.

BACKGROUND INFORMATION

The EPA issued this water quality guidance in July 2011 to assist its staff in meeting longstanding requirements of the Clean Water Act with regard to mountaintop removal coal mines in Appalachia. The EPA based the guidance on two major peer-reviewed scientific reports that reveal the extent of mountaintop removal’s harm on waters. Mountaintop removal mines often require a valid permit under the Clean Water Act and must comply with the law; and it is, in part, the EPA’s job to help make sure state permitting agencies follow the law. The guidance improved the agency’s oversight and enforcement and directed field staff on how to follow the science in their review process.

In another document challenged in this case, the EPA and Army Corps of Engineers jointly recognized the need to coordinate their independent reviews of the worst-of-the-worst pending permit applications—those which raised substantial environmental concerns—before deciding what action each agency would take on the permits. More than a dozen peer-reviewed scientific studies link mountaintop removal coal mining with significantly increased risk of cancer, heart, lung, and kidney disease, birth defects, and premature death, even after adjusting for other risk factors. One study shows that residents of counties with surface coal mining are 63% more likely to experience certain birth defects. Another finds that cancer cases are clustered in areas with the most coal mining.