Judge challenges Corps over mountaintop removal mining

On Mar. 23, a federal judge in West Virginia ruled that the US Army Corps of Engineers violated the law by issuing mountaintop removal mining permits that allowed headwater streams to be permanently buried. The ruling will affect dozens of pending mining permits across Appalachia. The decision by Judge Robert Chambers was a victory for environmentalists who brought the case challenging the US Army Corps of Engineers' decision to allow stream and headwater destruction by mountaintop removal coal mining. Although the Corps has no direct regulatory authority with respect to mountaintop removal coal mining, under the Clean Water Act the Corps must issue permits if fill material is to be dumped into the waters of the United States. Earthjustice and the Appalachian Center for the Economy and the Environment represented the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the West Virginia Highlands Conservancy in the lawsuit in US District Court for the Southern District of West Virginia. They sued the Corps for issuing permits to five West Virginia coal companies between July 2005 and August 2006. Chambers ruled that in issuing these permits the Corps violated the Clean Water Act and the National Environmental Policy Act. He rescinded the permits and enjoined the coal companies from the mountaintop removal coal mining that the permits would have allowed. Earthjustice attorney Steve Roady said: "The federal government has been illegally issuing such permits. Doing so has led to widespread and irreversible devastation to the streams, mountains and lands across Appalachia. The judge has made it clear that the Corps must now comply with the Clean Water Act and stop issuing illegal permits." "This decision does give the Corps another chance to try and show that they can issue permits for valley fills in streams without violating the law. But the evidence to date shows that the Corps has no scientific basis–no real evidence of any kind–upon which it bases its decisions to permit this permanent destruction to streams and headwaters. In his ruling, Chambers determined that stream destruction caused by mountaintop removal coal mining cannot be fixed through mitigation. "The Corp's witnesses... conceded that the Corps does not know of any successful stream creation projects in the Appalachian region," the judge wrote. Mountaintop removal mining is a form of strip mining in which coal companies use explosives to blast as much as 800 to 1000 feet off the tops of mountains order to reach the coal seams that lie underneath. The resulting millions of tons of waste rock, dirt and vegetation are then dumped into surrounding valleys, burying miles of streams under piles of rubble hundreds of feet deep, the Ohio Valley Environmental Coalition explains on its website. Mountaintop removal mining harms aquatic ecosystems and water quality, and destroys hundreds of acres of healthy forests and fish and wildlife habitat, including habitat of threatened and endangered species. Residents of the surrounding communities are threatened by rock slides, catastrophic floods, poisoned water supplies, constant blasting, destroyed property and lost culture. Many have been fighting the practice for years. Mountaintop removal mining takes place West Virginia, Kentucky, southern Virginia and eastern Tennessee. "Mountaintop removal mining valley fills cannot comply with the Clean Water Act without strict environmental limits," said Roady. "We hope the Corps recognizes this fact and realizes that approving illegal mountaintop removal mining permits does nothing to protect the environment, violates the law and is destroying the lives and culture of the people of West Virginia and the region."