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Archived Coal Issues:
August 2005
April 2004
Nov 2003

Archived Issues: Coal

July 2006

	Mountaintop Removal/Valley Fill NW21 West Virginia Litigation
	Valley Fill NW21 Kentucky Litigation
	Acid Mine Drainage
	Endangered Species Act
	Archived Coal Issues August 2005

Mountaintop Removal/Valley Fill NW21 West Virginia Litigation
 In our July 2004 NW21 victory, the District Court struck down the General Nationwide Permit 21 (issued under § 404 of the Clean Water Act) that the Army Corps of Engineers had used for over twenty years to illegally authorize all mountaintop removal mines in central Appalachia. In a high profile move, the Bush Administration appealed this decision in late 2004.

Since then, the Center has filed numerous documents in the 4th Circuit Court of Appeals in support of our NW21 victory. We recently filed our reply brief and anticipate that the Court will hear oral arguments in the case later this summer.

Meanwhile, this precedent setting ruling forces coal companies to seek individual permits that require public participation and additional detailed scientific scrutiny, rather than using the "stream-lined" general permit process. Consequently, the Center has been involved in the enormous task of working with scientific experts to formulate and submit extensive comments on virtually every application. Since June of 2004, forty-six surface mining applications, requesting permission for 191 valley fills that would impact over 88 additional miles of valuable Appalachian headwater streams, have been put out for public comment.

The Corps began issuing new permits early this year and we intend to file litigation on behalf of local residents to stop the issuance of permits that violate the Clean Water Act or the National Environmental Policy Act. This long and expensive battle will help determine the extent of future mountaintop removal devastation in the region.

Valley Fill NW21 Kentucky Litigation
To extend our success in the West Virginia NW21 litigation, we joined with lawyers in Kentucky and Trial Lawyers for Public Justice in Washington D.C. to file a similar action in January 2005 against the three Army Corps of Engineers Districts in Kentucky, on behalf of Kentuckians for the Commonwealth, Kentucky Riverkeeper, and Kentucky Waterways Alliance. Our motion for summary judgment in this case is currently pending before the federal District Court.

Acid Mine Drainage
Our June 2004 challenge of a permit that WVDEP issued knowing that the mining would create perpetual acid mine drainage (AMD) into the Potomac watershed has broad implications for the health of waters throughout the region. Unless this permit is overturned, 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. West Virginia's Surface Mine Board issued a split (3-3) decision on February 9, 2005, 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. It is just remarkable that we are required to litigate these cases before such a partial tribunal, and we are considering action to challenge the legitimacy of the surface mining permit appeals process.

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 have asked the Office of Surface Mining, Reclamation and Enforcement (OSM) to review West Virginia's issuance of this permit. In addition, we continue to monitor WVDEP's permitting actions and, if need be, will file appeals of future permits that would result in long-term AMD.

Endangered Species Act
On behalf of Coal River Mountain Watch, Ohio Valley Environmental Coalition, and West Virginia Highlands Conservancy, the Center recently filed a Notice of Intent to File Suit under the Endangered Species Act against two mining companies whose mountaintop removal activities will decimate a maternity colony of Indiana Bats, a listed endangered species that is in serious decline.

In a politically motivated move, the US Fish and Wildlife Service Headquarters had reversed a decision by their own WV Field Office to force the companies to drastically change their mining plans in order to protect the bats. This action by Headquarters sets a dangerous precedent, as this is the first time since the Endangered Species Act was passed that the Service has knowingly allowed an entire maternity Indiana Bat colony to be extirpated.

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