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Archived Coal Issues: |
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Ninth Circuit Amicus Brief: The Center was recently honored to have been asked to file an Amicus brief in the Ninth Circuit Court of Appeals on behalf of fourteen members of the United States Congress who have been steadfast defenders of the 1972 Federal Water Pollution Control Act (Clean Water Act), and all of whom are cosponsors of The Clean Water Protection Act. We represent these members of Congress who believe that the Clean Water Act does not allow the waters of the United States to be used solely for waste disposal. The Amicus brief that we prepared and filed on their behalf supports the petitioners' challenge of the U.S. Army Corps' illegal issuance of a "fill" permit for a gold mine in Alaska. If that permit were upheld, it would be the first time since the Clean Water Act was passed that the Corps allowed a mining operation to dump process wastewater directly into a lake, river or stream as "fill." However, a win by the petitioners in the Ninth Circuit would also have strong precedential value and would greatly help our fight against mountaintop removal. We are currently awaiting the Circuit Court's ruling in this appeal. Click here to read our legal brief. Mountaintop Removal/Valley Fill NW21 West Virginia Litigation Earlier this year, by a 5-3 vote, the federal Court of Appeals for the Fourth Circuit overturned our July 2004 General Nationwide Permit 21 (NW21) victory, in which the federal District Court had struck down a permit used by the Army Corps of Engineers for over twenty years to illegally authorize all mountaintop removal mines in central Appalachia. Noting that “this case is of exceptional importance to the nation and, in particular, to the states in the Appalachian region,” the dissenting judges pointed out that “[t]he Appalachian mountains, the oldest mountain chain in the world, are one of the nation’s richest, most diverse, and most delicate ecosystems, an ecosystem that the mountaintop coal mining authorized by the Corps’ general permit may irrevocably damage or destroy.” They emphasized that the NW21 permit issued by the Corps “undermines the [Clean Water Act’s] primary purpose and poses unnecessary risks to one of this nation’s great places.” The Fourth Circuit remanded the remaining issues in the case to the District Court for further consideration. In response, we have filed a motion for summary judgment in District Court and are awaiting the Court’s ruling. We anticipate that the case will again be appealed to the Fourth Circuit Court of Appeals after the District Court renders its decision. Until the Fourth Circuit overturned it, the District Court’s precedent setting ruling forced coal companies to seek individual permits requiring public participation and additional detailed scientific scrutiny, rather than using the "stream-lined" general permit process. General permits are still not being issued today. Consequently, the Center has taken on the enormous task of working with scientific experts to formulate and submit extensive comments on virtually every individual permit application. From June of 2004 to July of 2006, sixty-seven valley fill applications at surface mines, requesting permission for 268 valley fills that would impact over 131 additional miles of valuable Appalachian headwater streams, have been put out for public comment. Mountaintop Removal/Valley Fill Individual PermitsIn September of 2005, the Center and co-counsel from Earthjustice filed litigation in federal District Court on behalf of local residents affected by the U.S. Army Corps of Engineers’ issuance of individual permits for valley fills. Intended to address systemic problems in the issuance of valley fill permits, this lawsuit specifically challenges four individual § 404 CWA permits issued for large surface mines. Besides the potentially vast environmental harms (including burial of seven miles of streams) that would result from the mining and valley fills at these sites, one of the operations threatens Blair Mountain, site of the 1921 Battle of Blair Mountain and a potent symbol of coal miners’ resistance to the coal industry’s abuses. Two other sites are located near a roost tree of one of the only lactating female endangered Indiana bats in West Virginia. On Thursday, June 8th, 2006, less than two weeks before the trial was scheduled to begin, the Army Corps of Engineers suddenly suspended all four of the challenged permits. The Corps cited as its reason for the suspensions the need to consider issues raised in the complaint we filed to initiate this case. These four suspensions are the Corps’ attempt to avoid that trial which would, we believe, expose the illegality of its permitting for valley fills. In any event, the Corps essentially admitted on the eve of trial that its permitting in the region will not stand up to judicial scrutiny. After the Corps made a few changes in the permits, they were reissued in July. The trial on the merits of the case is now scheduled for October of 2006. Mountaintop Removal/Valley Fill NW21 Kentucky Litigation In November 2005, a federal District Court in Kentucky heard oral arguments on our motion for summary judgment in a case that we had filed, with co-counsel from Kentucky and DC’s Trial Lawyers for Public Justice, to extend our success in our West Virginia NW21 litigation. In this case against Kentucky’s three Army Corps of Engineers Districts, we represent Kentuckians for the Commonwealth, Kentucky Riverkeeper, and Kentucky Waterways Alliance. We are currently awaiting the Court’s decision and expect to be involved in an appeal to the federal Court of Appeals for the Sixth Circuit.
Our ongoing challenge of a permit that West Virginia’s Department of Environmental Protection (DEP) issued despite knowing that the mine would create perpetual acid mine drainage (AMD) in the Potomac watershed has broad implications for the health of waters throughout the region. Without further advocacy, coal that has not been subject to mining because of state and federal policies to deny permits where production of AMD is expected will likely be mined after all. This return to the irresponsible permitting practices that allowed thousands of miles of streams throughout the region to be killed by AMD negates decades of citizen concern, comment, litigation, and negotiations to prevent further AMD destruction of our region's waters. Perpetual AMD from the mine into the Potomac watershed would destroy several Potomac tributaries. Originally denied by DEP’s own permit writers, this permit was only issued after political pressure convinced DEP headquarters to override the staff decision. In February 2005, West Virginia's Surface Mine Board issued a split (3-3) decision on our appeal, effectively affirming WVDEP's issuance of the permit. The Board members who voted to affirm the permit are all long-time supporters of the coal industry. On behalf of the West Virginia Rivers Coalition, the West Virginia Highlands Conservancy, the West Virginia Council of Trout Unlimited, and the Ohio Valley Environmental Coalition, we then asked the federal Office of Surface Mining (OSM) to review West Virginia's issuance of this permit. In an important victory for the Center, in September 2005, technical experts in OSM’s West Virginia office who considered our complaint agreed with us on nearly every point. They found that DEP’s actions were “arbitrary, capricious and an abuse of discretion.” However, after DEP asked OSM’s Regional Director to review the state office’s initial findings, a high ranking Department of Interior (DOI) official intervened, asserting that OSM lacked authority to review a permit issued by DEP. This purely political move by DOI blocked a possible appeal before the Interior Board of Land Appeals. We subsequently petitioned OSM to take over permitting of the mine but the agency denied our petition, stating it would not take action unless we demonstrated a pattern and practice by DEP of permitting mines that would produce long-term AMD. After conducting additional research on DEP’s permitting practices and obtaining a draft report written by DEP and OSM on DEP’s permitting practices in acid seams, we submitted a petition to OSM that demonstrates DEP’s pattern of irresponsible permitting. We are now awaiting a response from OSM. We are also developing other cases that challenge DEP’s permitting practices in acid seams. If need be, the Center will appeal future permits that would result in long-term AMD. This is particularly important now because, as the price of coal skyrockets and so-called “clean coal” and coal conversion technologies are promoted, many marginal and environmentally dangerous coal seams, primarily in northern West Virginia, will likely be mined.
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