On behalf of citizens in America’s coalfields, attorneys with Earthjustice and coalfield attorney Walton D. Morris have requested a rehearing of a federal appeals court decision allowing underground coal mines to collapse homes and parklands. The petition, filed last Friday, asks the appeals court to apply federal protections against such surface “subsidence,” as required by the Surface Mining Control and Reclamation Act (SMCRA).

On June 3, the U.S. Court of Appeals for the D.C. Circuit overturned a lower court decision that, in a major legal victory for citizen groups, had required protection against subsidence impacts. The groups had challenged a 1999 Interior Department regulation that allowed coal companies to collapse the surface under homes, schools, national parks, and other sensitive areas protected by Congress. Kentucky Resources Council, Inc., represented by Walton Morris, Jr. and Earthjustice, joined Citizens Coal Council and other groups in challenging the rule.

The regulation allows underground coal mines to cause subsidence of the surface, which can, without warning, collapse homes and other structures, damage parklands, and cause water pollution. Although areas throughout the country are affected by this practice, the Appalachian coalfields in Pennsylvania, Kentucky, Virginia, and West Virginia are especially susceptible.

The federal district court agreed that the regulation violated a statutory ban enacted by Congress on surface mining operations in national parks, wilderness, and other areas. However, the appeals court’s June 2003 decision overturned the district court.

“This district court ruling was an incredible victory for environmental justice,” said Howard Fox, attorney for Earthjustice. “By overturning the decision, the appeals court gave coal mining operations the green light to continue to threaten the safety and property of homeowners, children, visitors, and entire communities.”

Coal excavation in sensitive areas can cause the surface to collapse with disastrous and potentially fatal impacts, including broken gas and electric lines. The Supreme Court has noted: “[D]amage can occur to buildings, roads, pipelines, cables, streams, water impoundments, wells, and aquifers. Buildings can be cracked or tilted; roads can be lowered or cracked; streams, water impoundments, and aquifers can all be drained into the underground excavations. Oil and gas wells can be severed, causing their contents to migrate into underground mines, into aquifers, and even into residential basements. Sewage lines, gas lines, and water lines can all be severed, as can telephone and electric cables.” [Keystone Bituminous Ass’n v. DeBenedictis, 480 U.S. 470, 475 n.2 (1987)]

“The Interior Department itself has estimated that this rule placed at risk 29,600 homes, and more than 15,000 acres of protected parks and open space lands,” said Tom FitzGerald, director of the Kentucky Resources Council, Inc. “The damage to homes and public lands, the disruption of lives and communities, and the physical danger and psychological harm that this rule would inflict on the affected communities is substantial and inexcusable.”

Background:

In the 1977 Surface Mining Control and Reclamation Act, Congress prohibited surface impacts from underground coal mines in certain key areas, including national parks, wildlife refuges, and wilderness areas; state parks; historic sites; occupied dwellings, public buildings, schools, churches, cemeteries, and roads. The Interior Department initially ruled that subsidence from underground coal mining was within this prohibition. However, in 1991, Interior reversed course and tried to exempt subsidence. In an Earthjustice lawsuit filed in 1991, that ruling was struck down because the Interior Department had not allowed for public comment. The agency reissued the exemption in 1999, despite adverse comments from Earthjustice and others. Citizen groups scored a major legal victory when this decision was overturned in the case of Citizens Coal Council v. Norton, 193 F. Supp. 2d 159 (D.D.C. 2002). This decision was then overturned by the Court of Appeals on June 3, 2003. 330 F.3d 478 (D.C. Cir. 2003).

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Contacts:

Howard Fox, Earthjustice, 202-667-4500 x 203

Tom FitzGerald, Kentucky Resources Council, Inc. 502-875-2428

Bill McCabe, Citizens Coal Council, Phone 304-339-2523, Cell 304-541-5241