Groups Challenge Bush Administration over Midnight Rulemaking

If unchallenged, rule change would allow stream destruction, more mountaintop removal mining


Jennifer Chavez/Kathleen Sutcliffe, Earthjustice, (202) 667-4500

A coalition of environmental groups took the Bush administration to court today over a controversial rule change pushed through the Office of Surface Mining December 12 after having been approved by the U.S. Environmental Protection Agency (EPA) in the waning days of the administration’s power. The legal challenge would overturn the last-minute repeal of the stream buffer zone rule — an environmental law that, since 1983, has prohibited surface coal mining activities within 100 feet of flowing streams.

Attorneys with Earthjustice, Appalachian Center for the Economy and the Environment, Appalachian Citizens Law Center, Sierra Club, and Waterkeeper Alliance filed the legal challenge today in federal district court in Washington, DC on behalf of Southern Appalachian Mountain Stewards, Kentucky Waterways Alliance, Tennessee-based Save Our Cumberland Mountains, West Virginia Highlands Conservancy, and two other West Virginia-based groups: Coal River Mountain Watch and Ohio Valley Environmental Coalition.

If not overturned, the rule change would lead to even more mountaintop removal coal mining — the aptly-named process of mining coal by blasting off the tops of mountains, and bulldozing the crumbled peaks into adjoining valleys.

“This administration chose its allegiance, that of protecting the economic interests of the coal industry over protecting our mountains, streams and watersheds,” said Kathy Selvage of Southern Appalachian Mountain Stewards. “We could live without coal, but the human race cannot survive without reasonably pure water. I wonder when the American people will pound the desk they sit at, and say loudly, ‘No, No, No! You can’t have our water.'”

The rule change was published in the Federal Register December 12 and will go into effect January 12, at which time mining companies would be free to bury streams with mining waste without reproach under the law administered by the Office of Surface Mining.

“This is among the 11th hour landmines planted by the Bush administration that an EPA headed by Lisa Jackson stands to inherit,” said Earthjustice attorney Jennifer Chavez, who filed today’s complaint. “We are doing what we can to make it easier for the incoming administration to undo the damage wrought by the last one and restore our nation’s commitment to protecting the waters and summits of the Appalachians.”

Opponents of the rule change argue that it violates the Clean Water Act and that EPA failed to fulfill its duties under the law when it signed off on the rule change, proposed by the Department of the Interior’s Office of Surface Mining.

“The notion that coal mining companies can dump their wastes in streams without degrading them is a fantasy that the Bush administration is now trying to write into law,” said Judith Petersen of Kentucky Waterways Alliance. “What part of the goal of the Clean Water Act: To restore and maintain the chemical, physical, and biological integrity of the Nation’s waters, did EPA not understand when it approved this rule?”

The outgoing administration finalized this controversial rule change in spite of a recent wave of criticism directed generally at the outgoing administration’s ‘midnight regulations’ and specifically at the repeal of this stream buffer zone rule.

“With the stroke of a pen, President Bush has made unlawful acts by the coal industry legal and will allow their assaults on our homes, our way of life and the destruction of our headwater streams to continue,” said Chuck Nelson, a former deep miner, now a volunteer organizer and board member of the West Virginia-based Ohio Valley Environmental Coalition. “A change in the stream buffer zone rule on Bush’s watch only adds to his pathetic legacy as one of the worst presidents in our nation’s history.”

Public outrage over the rule change has been mounting. Last month, top decision-makers in the coal mining state of Kentucky urged EPA to block the rule change. Kentucky Gov. Steven Beshear, Attorney General Jack Conway, and Reps. Ben Chandler and John Yarmuth each wrote letters to EPA head Stephen Johnson asking him not to sign off on the repeal of the stream buffer zone rule.

“Local communities depend on these waters, and the EPA’s own scientists have concluded that dumping mining waste into streams devastates the water quality,” said Bill Price, Sierra Club Environmental Justice organizer in Charleston, West Virginia. “The Bush Administration’s last-minute rulemaking violates the spirit of the Clean Water Act much the same way that mountaintop removal coal mining violates the spirit of Appalachia.”

Tennessee Governor Phil Bredesen has also weighed in with EPA, voicing concerns on behalf of his state.

“We were holding the line against mass decapitation of our mountains by the coal industry,” said Ann League, Vice President of the Board of Save Our Cumberland Mountains. “But with stream buffer zone protection rules now essentially buried under a pile of mine waste, we’re very worried about what could happen here in Tennessee.”

Since coal companies began the practice of mountaintop removal mining in earnest, the topography of Appalachia has been forever altered: more than 400 mountaintops have been stripped of trees and flattened, and 1,200 miles of mountain streams buried under rubble. Already the lush forests which once cloaked 387,000 acres of the world’s oldest mountain range have been replaced by apocalyptic lunar landscapes. If industry is allowed to proceed at the current rate, an area the size of Delaware will have been lost.

“It appears OSM and EPA have finally and totally caved to industry, revising the rule that had become too inconvenient to enforce and turning a blind eye to damage being done to our headwater streams and mountain communities they support” said West Virginia Highlands Conservancy Mining Chair Cindy Rank. “All the tears in Appalachia can never restore those streams, nor bring back what has already been lost.”

Read the complaint (PDF)

Listen to Earthjustice Vice President for Policy & Legislation Marty Hayden discuss the stream buffer zone rule and other last-minute Bush administration regulations on KQED-FM’s “Forum” with Michael Krasny:

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