Enviro Groups Tread Lightly With Endangered Species Act in Appalachia

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The New York Times

Enviro Groups Tread Lightly With Endangered Species Act in Appalachia

by
Patrick Reis

Mountain-top removal coal mining is obliterating vast swaths of Appalachia in Kentucky, Tennessee, Virginia and West Virginia. This eventually affects water quality. (Flickr/Sierra Club)

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.

For more news on energy and the environment, visit www.greenwire.com.

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