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Enviro Groups Tread Lightly With Endangered Species Act in Appalachia
The last ice age turned the Appalachians into North America's Noah's Ark.
The mountain peaks provided a last green refuge above the glaciers, drawing species from across the eastern half of continent. Some 10,000 years later, many have stayed, and the mountains are home to one of the highest concentrations of biodiversity -- from flying squirrels to freshwater mussels -- in the country. Just last month, biologists stumbled across an entire new genus of salamanders in Southern Appalachia, the first new vertebrate genus discovered in the United States in 50 years.
Beneath that biodiversity sits 28.5 billion tons of anthracite coal, according to 1998 Department of Energy estimates. The mineral is so central to the region's identity and economy that West Virginia last month declared it the official state rock.
The lucrative coal is obtained through mountaintop removal -- dynamiting the tops off the mountains and dumping the leftovers into mountain valleys and stream beds. Environmental groups say the practice is horribly destructive to the region's water, land and wildlife -- but they have been reluctant to use a powerful weapon, the Endangered Species Act, in fighting it.
The few national groups that have tried have run up against a special species review process for coal mining, and most have avoided it entirely for fear of upsetting a fragile partnership with their regional blue-collar allies.
As a result, the Appalachians have become something of a "national sacrifice area" to meet coal needs, said Tierra Curry, a biologist with the Center for Biological Diversity.
A different standard
The Endangered Species Act normally requires the Fish and Wildlife Service to formally review any federal authorized, funded or administered action that could negatively affect endangered or threatened species. FWS biologists study projects for possible effects to the species and then can recommend alternatives, mitigation measures or even that the projects be abandoned entirely.
Environmental groups frequently sue the Fish and Wildlife Service over the agency's reviews if they think it approves a project that does not pass muster under the Endangered Species Act. They famously did so in the 1990s to halt logging of old-growth forests in the Pacific Northwest on the grounds that it would harm the spotted owl.
But the review standard is waived for coal mining. Instead, Interior relies on a document known as the "1996 biological opinion."
In 1995, the Office of Surface Mining requested clarification on the Endangered Species Act's implications for their permitting and policymaking. In the resulting 15-page document, Fish and Wildlife Service officials argue that by following the environmental provisions laid out under the Surface Mining Law, mine operators ensure protection for all current or future endangered species. Therefore, the officials argued, Interior does not require a formal review from the Fish and Wildlife Service before issuing permits for coal mines.
In place of the formal reviews, Interior's Office of Surface Mining and state regulators require mining companies to hire a government-approved contractor to conduct their own surveys for any potential endangered species. The surveys require approval from state and federal biologists, who provide informal guidance on how to minimize mines' potential effects to species, said Christy Johnson Hughes, the Fish and Wildlife Service's national energy coordinator for coal.
Would-be coal mines also require a Clean Water Act permit from U.S. EPA and the Army Corps of Engineers, but while the agencies have the option to ask for formal endangered species consultations during that process, they do so "very rarely," Hughes said.
Federal officials defend the current policy. "In my experience, the corps and [the Office of Surface Mining] both try to be very responsive to threatened and endangered species needs, and I think they've gotten better," Hughes said. "We stay as well informed as we possibly can, and we do try to be very conservative" when dealing with species needs.
The coal industry agrees. "In my personal opinion, the coal industry is regulated more than any [other] industry that I'm familiar with," said Jeff Speaks, lobbyist for the Kentucky-based trade association Coal Operators & Associates. Speaks added that industry groups have every incentive to be honest in their self-reporting because the delays incurred by the rejection of endangered species surveys or any other part of their applications would cost them millions.
Environmental groups disagree.
The Center for Biological Diversity's Curry, who grew up between two coal mines in Kentucky's Knott County before moving west to work at the Center's Portland, Ore., office, said the special standard greenlights environmental destruction in Appalachia that would be unthinkable elsewhere. "I've read longer biological opinions for road repairs on the Mount Hood National Forest than for the [1996 biological opinion] that proclaims to address all species impacts from all coal mining activities," she said. "In Oregon, you would never get permission to blow up the top third of a mountain -- it just wouldn't happen."
Deborah Murray, lead attorney for the Southern Environmental Law Center, said the document relies on faulty logic to shield coal mining from the Endangered Species Act. Without Fish and Wildlife Service biologists formally reviewing mines, there is no way to ensure that operators are complying with the Surface Mining Law's species provisions, and therefore no way to ensure they are complying with the Endangered Species Act at all, Murray said.
Informal consultations during the planning stages are a wholly inadequate replacement for formal reviews, Murray said. The formal reviews by federal biologists require public comment periods and months of research before reaching a decision that can be contested in court. "Informal consultations just wouldn't have any clout," Murray said. "The permitting agency could ignore the comments. They could do the same with a ... formal consultation, but they do so at their peril."
SELC's argument appears to be gaining some traction at Interior.
In 2008, the group sued on behalf of the National Parks Conservation Association over the lack of Endangered Species Act consultations while changing the stream buffer zone rule to relax limits on what mountaintop miners could dump into waterways. Interior cited the 1996 opinion in forgoing the consultations, again arguing that existing provisions provide adequate protection. But in April, Interior Secretary Ken Salazar said that the failure to consider effects to species "did not pass the smell test," retracting the stream buffer zone rule changes while his department takes a second look (E&ENews PM, April 27).
Groups differ on strategy
Salazar's "smell test" comments were a small victory for environmental groups but far from the outright ban on mountaintop removal policy they are hoping the Obama administration will eventually deliver. In discussions following the announcement on the next step in battling mountaintop removal, a rift emerged among environmental groups, according to people close to the talks.
SELC is hoping Interior will drop the 1996 biological opinion entirely, requiring Interior to bring in Fish and Wildlife Service biologists before issuing permits to individual mines, Murray said. A petition asking Interior to do so was rejected last year by the Bush administration, but Murray said the new administration may be more receptive.
Accounts differ on what happened next. A third-party observer said that during strategy sessions among opponents of mountaintop removal mining, the Sierra Club and Earthjustice argued vigorously against pursuing the species angle.
Both groups for years have worked to build partnerships in Appalachia with local opponents of mountaintop removal mining, who the groups say are mostly concerned about the practice's damage to local land, water and public health.
According to the sources, the groups expressed fear that ongoing discussions about endangered species could hurt their cause by helping coal companies frame opponents of mountaintop removal mining as outsiders willing to sacrifice jobs in one of the country's poorest regions in order to protect mayflies and crayfish.
The alleged trade-off between economic well-being and environmentalism is already a talking point in the mountaintop removal debate. A bumper sticker currently making rounds in the region reads: "Save a Coal Miner, Kill a Tree Hugger."
Joan Mulhern of Earthjustice and Aaron Isherwood of the Sierra Club, attorneys who work on mountaintop removal for their groups, say the strategy discussions went differently. They said they do not oppose using the Endangered Species Act against mountaintop removal mining; they just choose not to use it themselves because they think it is neither the most effective strategy nor the one that resonates with the local groups they represent.
"If you talk to the people in the region about what mountaintop removal has done to the places where they grew up, the damage it has done to the people who live there now ... those are the things that they care about most," Mulhern said.
SELC's Murray said the same measures that safeguard Appalachia's species -- such as water pollution controls and forest protections -- are essential to protecting its people.
But Mulhern said mining companies are constantly seeking to turn that argument on its head. "If you look at the comments of the mining companies, they're trying to say that it's all about 'mayflies versus jobs,'" she said. "Whatever environmental groups say, mining companies will try to say the impacts of mountaintop removal aren't that significant. I think that they've been pretty unsuccessful in making that argument to anyone but themselves."
For now, the groups plan to continue pressing the Obama administration to deem mountaintop removal mining a violation of the Clean Water Act, said the Sierra Club's Isherwood. "I think we need to enforce the Endangered Species Act, but not every mountaintop removal mine is going to affect a threatened or endangered species," he said. "What we really need is for the Obama administration to enforce the Clean Water Act and end mountaintop removing mining."
Local environmentalists were dubious about the endangered species angle, but as more mountains are dynamited and the Obama administration deliberates, all options are still on the table, said Jim Sconyers, chairman of the West Virginia Sierra Club. He was not present at the strategy discussions where the debates allegedly took place.
"We would probably think you'd be barking up the wrong tree if you came over and wanted us to talk about endangered species," Sconyers said. "But who knows? Maybe someday we will."Clarification
The article was updated at 10:30 a.m. Aug. 11 to clarify that SELC is urging the new administration to overturn the 1996 biological opinion as it continues to work with other environmental groups on the issue of mountaintop removal mining.
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