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This article originally provided by
The
Charleston Gazette
Gov. Joe Manchin has joined with Massey Energy and the rest of
the coal industry to fight two federal court rulings that require
more scrutiny of proposed mountaintop removal mines.
Two state agencies also are siding with the Bush administration
in the appeal of the rulings by U.S. District Judge Robert C.
Chambers.
Lawyers for the state departments of Commerce and Environmental
Protection filed “friend of the court” briefs with the 4th U.S.
Circuit Court of Appeals in Richmond, Va. They warn that Chambers’
rulings could cripple the coal industry if they are not overturned.
“The legality of coal mining, as has been practiced in West
Virginia since the [Clean Water Act] was passed in 1972, is now
subject to question,” Commerce lawyer Will Valentino and DEP
attorney Tom Clarke wrote in their brief. “In short, coal mining is
vital to the economic survival of West Virginia — the eradication of
this industry would cause devastation to thousands of West
Virginians, shortfalls in general revenue, a constriction of state
and local services, and the destabilization of the economy.”
Lawyers for the Ohio Valley Environmental Coalition responded
that the state failed to raise its concerns while the case was
pending before Chambers, when all sides could have introduced
evidence on the economic consequences.
Coalition lawyers said the state’s brief “discusses nothing of
legal significance” and “would be solely for the purpose of judicial
lobbying.”
Bush administration lawyers, Massey and various coal industry
groups are appealing Chambers’ March 23 and June 17 rulings in the
latest legal effort by environmental group lawyers to toughen
regulation of mountaintop removal.
On March 23, Chambers concluded that the U.S. Army Corps of
Engineers had not fully evaluated the potential environmental damage
before approving four Massey strip-mining permits.
Three weeks later, though, Chambers allowed Massey Energy to
continue to dump waste rock and dirt into streams at three of those
mines, because the company had already started operations there.
Massey has asked Chambers to also allow operations to resume at the
fourth mine covered by the judge’s original ruling.
In his second ruling on June 13, Chambers ruled that the Clean
Water Act does not allow coal operators to build in-stream sediment
ponds at the bottom of valley fills.
In October, Chambers blocked another corps permit for Magnum Coal
subsidiary Jupiter Holdings LLC’s Callisto Surface Mine near Bob
White, Boone County. That move was expected to cost 39 miners their
jobs.
The Manchin administration brief cited a much higher number — 637
jobs — that it says are at risk at all five mines considered by
Chambers. The brief does not mention that the ruling has been stayed
pending appeal.
The state’s lawyers also did not include any legal arguments for
why Chambers’ first ruling — the one requiring additional permit
studies — was incorrect. The brief argues that the second Chambers
ruling conflicts with federal strip mining law and with the
settlement of a previous federal court case.
DEP and Commerce lawyers focused on what they argued were the
dire economic consequences of the ruling.
“As a result of this case and the others which have preceded it,
those who desire to obtain environmental permits in West Virginia
have been forced to meet greater requirements than for the same
federally based regulatory programs in any other state,” they wrote.
“The difficulties responsible mine operators are having in obtaining
permits to mine West Virginia coal, due to litigation, [are]
becoming a threat to the state’s ability to continue to provide the
nation with a stable source of energy and contribute to national
security.”
Joe Lovett, a lawyer with the Appalachian Center for the Economy
and the Environment, said Thursday the state wrongly argues that
Chambers’ ruling outlaws coal mining.
“The judge did not say that mountaintop removal is illegal,”
Lovett said. “He just said that mine operators have to follow
environmental laws.”
On Thursday, Lovett filed a new lawsuit in federal court in
Kentucky, seeking a ruling on corps permits there that are similar
to the one Chambers issued in Southern West Virginia.
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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