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Saturday, February 14, 2009

Environment - "Coal Industry Wins a Round on Mountaintop Mining"

Andrew C. Revkin of the NY Times reports:

The latest in a series of federal court rulings on mountaintop coal mining in Appalachia came down firmly on the side of the coal industry on Friday.

The ruling, by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., overturned a 2007 decision that supported environmentalists’ claims that the Army Corps of Engineers had improperly issued permits for several such mining operations.

For more than a decade, environmental campaigners have tried various legal avenues to fight the mining technique, a form of strip-mining that blasts the tops off mountains and dumps the leftover rock in valleys, burying streams.

After Friday’s ruling, environmental groups urged President Obama to follow up on statements he had made during his campaign that were critical of mountaintop mining by reversing Bush administration policies intended to expand the practice.

Jennifer Chavez, a lawyer at Earthjustice, an environmental law firm that is a plaintiff in the case, called the decision “a landmark in a bad way,” that could unleash a burst of new mining.

“There’s a big backlog of permits, something like 80 or 90, we hear from our partners in West Virginia,” Ms. Chavez said. “We’re afraid there’s going to be just a floodgate opening.”

But Luke Popovich, a spokesman for the National Mining Association, said the industry was “delighted” and called the ruling “a sweeping vindication.”

More about the opinion:
The case, heard by three judges on the federal appeals panel, focused on whether the corps had been too liberal in allowing mining companies to bury streams as long as they created settling ponds and promised to transform drainage ditches into artificial streams that, in theory, might filter out contamination. The corps is responsible for preventing actions that could harm waters in the United States.

Among other arguments, the plaintiffs contended that the corps had not demonstrated scientifically that the ponds and artificial streams were effective.

The ruling said the corps had the expertise and discretion to issue such permits.

Here is the 84-page opinion in the case of Ohio Valley Envtl Coalition v. Elk Run Coal Co. It is a 2-1 decision - "Reversed, vacated and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge Shedd joined. Judge Michael wrote a separate opinion dissenting in part and concurring in part." The dissent, which begins on p. 67, concludes on p. 83-84:
Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.

Posted by Marcia Oddi on February 14, 2009 11:53 AM
Posted to Environment