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This news story originally provided by
The Charleston Gazette
By Ken Ward Jr.
Staff writer
A lawsuit over mountaintop removal coal mining is headed
back to U.S. District Judge Joseph R. Goodwin’s courtroom.
Last week, the Ohio Valley Environmental Coalition and
other groups asked Goodwin to jump back into the case.
Coalition lawyers want Goodwin to rule on a variety of
arguments that the judge did not address in an earlier
decision that was overturned by a federal appeals court.
Lawyers Joe Lovett of the Appalachian Center for the
Economy and the Environment and Jim Hecker of Trial Lawyers
for Public Justice filed the motion with Goodwin in U.S.
District Court in Charleston.
Lovett and Hecker want Goodwin to again block the U.S.
Army Corps of Engineers from approving new mining operations
through a streamlined permitting process meant for
activities that cause minimal environmental harm.
Through a series of rulings starting in July 2004,
Goodwin found the corps never concluded that mountaintop
removal valley fills have minimal impact on the environment.
Without that finding, the Clean Water Act does not allow the
corps to authorize the fills through streamlined permit
reviews, Goodwin ruled.
In a November 2005 decision, a three-judge panel from the
4th U.S. Circuit Court of Appeals found that the corps “did
in fact make the determinations” that fills cause minimal
impact.
That narrow legal issue, though, was only one of the
attacks on mountaintop removal contained in the coalition’s
lawsuit, originally filed in October 2003.
Among the other issues raised in the lawsuit was that:
The corps did not consider the nationwide impacts of its
streamlined permitting process
Corps officials did not examine the impacts of
mountaintop removal on “the whole environment,” but only
looked at water quality effects.
The corps arbitrarily did not place a limit on the
length or size of streams that could be buried by permits
processed through its streamlined reviews.
The corps’ determination that its streamlined permits
have minimal effects on the environment is “arbitrary and
capricious.”
The corps’ decision that this process has “insignificant
environmental effects” — and therefore does not need a more
detailed study — is arbitrary and capricious.
In mountaintop removal, coal companies use explosives to
blast apart entire hilltops and uncover valuable low-sulfur
coal seams. Huge trucks and dozers roll in and load up the
coal. Leftover rock and dirt — the stuff that used to be the
mountain — is shoved into nearby valleys, burying streams.
In a landmark study of the practice, the federal
government found, from 1992 to 2002, mountaintop removal and
associated valley fills destroyed or seriously damaged 1,208
miles of Appalachian streams.
Over that same period, mountaintop removal eliminated
380,547 acres of forest in the region, the government study
found.
As mountaintop removal expanded in the mid-1990s, citizen
opposition grew into public protests and a series of
lawsuits and permit challenges.
Three times in the past four years, the Richmond,
Va.-based 4th Circuit — dubbed the most conservative appeals
court in the nation by The New York Times — has thrown out
decisions by federal judges in West Virginia to limit the
practice.
Currently, a related case is pending before U.S. District
Judge Robert C. Chambers. In that suit, environmental groups
want to force the corps to conduct detailed environmental
impacts studies on every application for a new valley fill
permit.
Last month, the full 4th Circuit declined to reconsider
the panel’s decision to overturn Goodwin’s mining ruling.
But three judges — including two from West Virginia,
Robert B. King and M. Blane Michael — dissented and said
“this case is of exceptional importance to the nation and,
in particular, to the states of the Appalachian region.”
“The Appalachian regions, the oldest mountain chain in
the world, are one of the nation’s richest, most diverse,
and most delicate ecosystems, an ecosystem that mountaintop
coal mining authorized by the corps’ general permit may
irrevocably damage,” King wrote in the dissent.
King added the corps’ permit process “undermines the
[Clean Water Act’s] primary purpose of protecting the
environment” and “poses unnecessary risks to one of this
nation’s great places.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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