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Manchin joins Massey, industry in mine ruling appeal

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.


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