USA: Court Blocks Mountaintop Removal Coal Mine

Published by MAC on 2014-10-06
Source: Environmental News Service

Court Blocks West Virginia Mountaintop Removal Coal Mine

Environmental News Service

2 October 2014

WASHINGTON, DC - A long court battle came to an end Tuesday when a federal judge upheld the U.S. Environmental Protection Agency's denial of a permit for a large, contentious mountaintop removal coal mine in Appalachia, the Spruce No. 1 Mine.

Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia found no merit in the coal industry's arguments that Mingo Logan coal company should be allowed to remove a West Virginia mountaintop to get at coal deposits and dump the waste soil and rock into waters of the United States.

Judge Jackson ruled that EPA's decision to rejection of a Clean Water Act permit for this mine was reasonable and supported by the scientific record.

The Spruce No. 1 Mine is "among the largest individual surface mines ever authorized in West Virginia," and if fully constructed, the project [would] disturb approximately 2,278 acres (about 3.5 square miles) and bury approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil, the ruling states.

The mountain at issue is in Logan County, overlooking the small community of Spruce Valley and Pigeon Roost Hollow, a long valley where several families live.

In 2007 the U.S. Army Corps of Engineers under President George W. Bush issued a Clean Water Act permit to Mingo Logan Coal Company, a subsidiary of Arch Coal Inc. The permit authorized the company to discharge dredge and fill material into waters of the United States.

During the permit application process the Corps, EPA and the West Virginia Department of Environmental Protection analyzed the potential environmental impacts of the proposed discharges. After imposing several mitigation conditions on the permit, the federal and state agencies consented.

Despite Mingo Logan's compliance with its permit, in January 2011, EPA withdrew the discharge authorization. EPA claimed that the Clean Water Act authorizes the agency to modify or revoke such permits on the grounds of "unacceptable" project impacts.

The Corps and the State of West Virginia disagreed with the EPA decision.

Then the court battles began. Mingo Logan filed suit against EPA in DC District Court. The National Association of Home Builders and 10 other trade associations filed a brief supporting Mingo Logan, joined by 27 states.

Arch contended in court documents that the Clean Water Act "does not remotely grant EPA a retroactive trump card that trivializes the Corps' authority and destroys the regulated community's ability to rely on the permit." The law allows the agency to block a permit before it is issued, but Arch argued that it cannot do so retroactively.

Appalachian citizen groups and environmental groups have been fighting to save the streams that would be destroyed by the Spruce No. 1 Mine for more than a decade.

Earthjustice, Appalachian Mountain Advocates, West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Natural Resources Defense Council filed a brief in support of the EPA's veto of the Spruce No. 1 mountaintop removal coal mine.

Arch brought the case to the Supreme Court after an appeals court ruled in favor of the EPA.

But in March 2014, the Supreme Court refused to hear the coal company's challenge to the EPA's withdrawal of the discharge permit and remanded the case back to the U.S. District Court for the District of Columbia.

Commenting on Judge Jackson's ruling Tuesday, Arch Coal expressed disappointment and said the company believes that "legislation is the clear next step in addressing the retroactive veto question."

The environmental groups said the EPA decided to veto the Spruce No. 1 Mine permit based on science showing "the irreparable harm that would occur if the mining company were allowed to permanently bury and pollute natural headwater streams with mining waste."

Earthjustice attorney Emma Cheuse, who argued on behalf of Appalachian groups in defense of the EPA's veto, said, "Today's court victory is a win for all Americans who believe our children deserve clean water and healthy lives without facing the increased threats of cancer, birth defects and early mortality associated with mountaintop removal coal mining."

Judge Jackson's ruling Tuesday strengthened their position, but the activists know their fight is far from over.

Debbie Jarrell, Coal River Mountain Watch co-director, said, "It's about time that the EPA is able to do their jobs, but protecting two streams out of the hundreds of active and pending permits is a far cry from ending mountaintop removal. The EPA needs to go much further to protect our communities' health and water, and not get sued for doing their jobs."

Said Jim Hecker, environmental enforcement director at Public Justice and co-counsel in the 1998 case that initially blocked the Spruce mine, "The coal industry has falsely painted the Spruce Mine veto as an example of EPA overreach and a ‘war on coal,' and this decision shows that EPA's decision is based on clear scientific evidence of serious environmental harm from mining."