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MOUNTAINTOP REMOVAL FIGHT RETURNS TO APPEALS COURT

Does mountaintop removal coal mining cause only minimal damage to West Virginia’s hills, forests and streams?

On Monday, a federal appeals court will consider that question. The 4th Circuit Court of Appeals is scheduled to hear arguments in the latest legal effort to more strictly regulate Appalachian strip mining.

In the case, the Bush administration and the coal industry are challenging rulings by U.S. District Judge Joseph R. Goodwin in Charleston.

Goodwin blocked the U.S. Army Corps of Engineers from approving new mountaintop removal valley fills through a streamlined permit process that allows little public scrutiny.

In a series of rulings starting July 8, 2004, Goodwin said the corps never concluded that 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.

Goodwin ruled in response to a case brought in October 2003 by the Ohio Valley Environmental Coalition and two other groups, Coal River Mountain Watch and the Natural Resources Defense Council.

In a brief filed with the 4th Circuit earlier this year, lawyers for those groups outlined the findings of a 41/2-year government study of mountaintop removal:

s From 1992 to 2002, mountaintop removal and associated valley fills destroyed or seriously damaged 1,208 miles of Appalachian streams.

s Over that same period, mountaintop removal eliminated 380,547 acres of forest in the region.

s If past, present and future disturbance is combined, strip mining will impact more than 1.4 million acres of the region’s land.

In this case alone, 11 specific permits challenged by environmentalists would bury 26 miles of streams, court records show.

“It is difficult to imagine how any agency, no matter how delusional, could conclude that this amount of destruction is minimal or insignificant,” environmental group lawyers Jim Hecker and Joe Lovett told the 4th Circuit.

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.

As the practice grew in the mid-1990s, citizen opposition grew into public protests and a series of lawsuits and permit challenges.

Twice 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 U.S. District Court rulings aimed at limiting mountaintop removal. Both of the previous rulings were by now-deceased U.S. District Judge Charles H. Haden II.

Before they can open new surface mines, coal operators must obtain several permits from state and federal regulators. Among those is a permit from the corps for the actual filling of streams with mining waste.

Under the federal Clean Water Act, the corps can issue two types of fill permits: individual permits and nationwide, or general, permits.

Individual permits cover specific fill proposals. Before issuing them, the corps must conduct a “case-by-case evaluation” of potential environmental effects.

General permits cover categories of activities, and are issued on a statewide, regional or nationwide basis. When it issues general permits, the corps spells out the general conditions that a particular category of activity should meet. Then, companies seek authorization for specific projects. If they promise to meet the general conditions, their projects are authorized with much less review than individual permits.

Under the law, general permits are allowed to be used only for activities that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative effects on the environment.”

For years, the corps approved coal mining valley fills through a general permit called Nationwide Permit 21, or NWP 21.

On July 8, 2004, Goodwin agreed with environmental group arguments that the corps had never found the effects of valley fills to be minimal. Goodwin blocked the corps from approving new valley fills through NWP 21. About a month later, on Aug. 13, Goodwin expanded the ruling to block valley fills that had received a permit, but where work had not yet begun.

In its appeal, the Bush administration argued that Goodwin overstepped his authority in tossing the corps’ decision to use NWP 21 for valley fills. Generally, federal courts are required to defer to environmental agency legal interpretations unless actions are unreasonable or plainly erroneous.

“This approach by the corps strikes the best balance between environmental concerns and Congress’ desire that a more streamlined and general permit for categories of activities be made available, and that the wheel, as it were, not be reinvented each time a permit is issued — in other words, compelling the mining industry to seek individual permits in all instances for valley fills,” the corps lawyers wrote.

Corps lawyers also argue that their agency does a case-by-case review of valley fill proposals that apply for NWP 21 approval to ensure they would have minimal impacts.

Goodwin rejected this position, noting that it allows valley fill decisions to avoid public review and comment that would be required under applications for individual permits.

“By combining features of both individual and general permitting in NWP 21, the corps allows an activity with the potential to have significant effects on the environment to be permitted without being subject to public notice and comment or the other procedural hurdles to authorization,” Goodwin wrote in his July 8 ruling.

In legal briefs filed with Goodwin, coal industry lawyer Bob McLusky argued that the case was “the third attempt by environmental organizations to halt coal mining in Central Appalachia.

“Although the first two attempts proved ultimately unsuccessful, the coal industry still struggles to recover from the substantial disruptions to the permitting process caused by the litigation,” McLusky wrote.

Bush administration officials have agreed.

During a speech to West Virginia business leaders in September 2004, James Connaughton chairman of the White House Council on Environmental Quality, said Goodwin’s ruling “put a halt to work West Virginia coal miners do for their communities.”

Thomas J. Sansonetti, an assistant U.S. attorney general, said in a prepared statement that the decision “will substantially curtail production of West Virginia coal that is low in sulfur and, therefore, less polluting.”

But since January alone, the corps has issued more than 20 individual permits for coal-mining stream fills, according to agency records.

At the same time, 2005 coal production through Sept. 10 in West Virginia is up about 2.6 percent over the same period last year, according to the U.S. Department of Energy.

In court papers, McLusky said Arch Coal officials believed that Goodwin’s ruling would hamper their efforts to obtain new permits and keep mining coal in West Virginia.

But in conference calls with industry stock analysts, Arch CEO Steve Leer has said his company won’t have many problems with the individual permit process.

“Arch has been anticipating that this could be a likely outcome for a number of years,” Leer said just weeks after Goodwin’s ruling.

“I think it will make it more difficult for people to get permits,” Leer added.

“It will lengthen the time of the permit process, which is already lengthy. But we’ve built that in and made it part of our modus operandi.”

Just two months ago, Massey Energy President Don Blankenship said his company was not having problems getting the permits it needs to continue mining.

“Overall, we are OK with permits,” Blankenship said in a conference call with industry analysts. “The speed with which we’re getting them has not changed much, but some of the larger ones we’ve gotten have put us in good shape. I know of no significant issues that we have.”


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