WASHINGTON (March 31, 2009) – In a federal court decision today, environmental groups won a case that will help protect U.S. waters from surface coal mining waste. The case, heard by the Southern District of West Virginia, challenged an Army Corps of Engineers Nationwide permit that would have authorized waste material disposal from surface coal mining into U.S. waters. The Natural Resources Defense Council (NRDC), the Ohio Valley Environmental Coalition and Coal River Mountain Watch were represented by the Appalachian Center for the Economy & the Environment and Public Justice.
The decision handed down by the court applies to the Southern District of West Virginia, but involves a nationwide permit issued by the Army Corps of Engineers under the Clean Water Act, which gave coal mining operations, such as mountaintop removal mines, the ability to dump their waste in streams and other water bodies. Mountaintop removal mining produces enormous quantities of waste that is commonly disposed of in adjacent valleys and streams.
The court found that the Corps had acted unreasonably in two main respects. First, it ignored the past impacts of similar mining in deciding not to prepare an environmental impact statement under the National Environmental Policy Act (NEPA). Second, the Corps assumed – without justification – that the impacts to streams and other water bodies would be adequately offset by “mitigation” measures, such as building man-made drainage channels constructed to replace destroyed natural streams. However, the court found that the Corps did not have an adequate plan to monitor mitigation efforts or require corrective action, which is necessary considering that mitigation commonly fails to replace the lost resources.
“The court’s decision is a victory for our irreplaceable waterways. A nationwide permit to dump coal mine waste into our waters would have been a recipe for environmental disaster,” said Jon Devine, Senior Attorney for NRDC. “This important win will help protect Appalachian mountains and streams from harmful mining practices.”
"Mitigation is the centerpiece of the Corps' claim that mountaintop removal and valley fills have cumulatively insignificant environmental effects,” said Jim Hecker, Environmental Enforcement Director for Public Justice. “The Corps claims that it can achieve 100% success in mitigating the burial of streams by creating new streams elsewhere. The court correctly found that this claim is an 'unsupported belief' and a 'mere promise' that has no factual or scientific basis. In two recent letters objecting to similar Corps permits, EPA told the Corps the same thing."
“Judge Goodwin has reaffirmed that science and law must take precedence over dirty coal profits,” said Vernon Haltom, co-director at Coal River Mountain Watch. “Coal companies have assaulted our homes, communities, mountains, and life-giving water with impunity for far too long. We hope the Manchin administration will also now begin to enforce the laws that are intended to protect our communities and resources."
“We applaud Judge Goodwin’s decision. Aside from the people, the mountains and streams of West Virginia are two of our greatest assets that should be protected fervently for the benefit of future generations,” said Janet Keating, executive director of the Huntington, W.Va.-based Ohio Valley Environmental Coalition.
Today’s ruling is the latest setback for mountaintop removal coal mining. Last week, EPA announced that it is taking a close look at whether individual mountaintop removal mining permits in Appalachia are supported by the science, and Senators Alexander and Cardin introduced a bill to curb dumping mountaintop removal coal mining waste in streams.