March, 24 2014, 10:15am EDT
For Immediate Release
Contact:
Liz Judge, Earthjustice, (970) 710-9002, ljudge@earthjustice.org
Ben Luckett, Appalachian Mountain Advocates, (304) 645-0125, bluckett@appalmad.org
Jim Hecker, Public Justice, (202) 797-8600, jhecker@publicjustice.net
Cindy Rank, West Virginia Highlands Conservancy, (304) 924-5802, clrank2@gmail.com
Vivian Stockman, Ohio Valley Environmental Coalition, (304) 927-3265, vivian@ohvec.org
Sean Sarah, Sierra Club, (202) 548-4589, sean.sarah@sierraclub.org<
Vernon Haltom, Coal River Mountain Watch, (304) 952-4610, vernon@crmw.net
Jon Devine, Natural Resources Defense Council, (202) 289-2361, jdevine@nrdc.org
Supreme Court Rejects Coal Industry Attack on the EPA's Power to Protect Clean Water
Refuses to hear baseless case against the EPA for blocking extreme WV mountaintop removal mine
WASHINGTON
Today the Supreme Court denied the coal mining industry's request to hear a case against the Environmental Protection Agency for vetoing part of a permit for one of the largest and most harmful mountaintop removal coal mines in West Virginia's history, the Spruce No. 1 mine. By declining to take the case the Supreme Court refused to reverse the lower court's ruling that EPA has full authority to protect clean water whenever necessary to prevent unacceptable environmental harm. Background information and relevant documents are provided at the end of this release.
Said Trip Van Noppen, President of Earthjustice:
"The Spruce No. 1 mine is one of the largest and most destructive mountaintop removal mines ever proposed in Appalachia. EPA's decision to veto the dumping of waste from this mine was a decision to prevent the most extreme impacts of the most radical type of strip mining - the worst of the worst. The Clean Water Act, enacted with wide bipartisan and public support, gave EPA broad authority to step in and stop this type of wholesale destruction and pollution of U.S. waters. The Supreme Court refusal to hear industry's baseless case confirms that the EPA has the clear legal authority to prevent the dumping of waste whenever it would cause unacceptable harm to communities and the environment."
Said Jim Hecker, Environmental Enforcement Director at Public Justice and co-counsel in the 1998 case that initially blocked the Spruce mine: "The coal industry has falsely painted the Spruce mine veto as an example of EPA overreach and a 'war on coal,' when in fact EPA's authority to veto this permit is obvious from the face of the statute and EPA's decision is based on clear scientific evidence of serious environmental harm from mining."
Said Vivian Stockman, project coordinator, Ohio Valley Environmental Coalition:
"This is a very gratifying outcome for water drinkers everywhere. The Court agrees that Congress gave EPA the authority to protect our waters from devastating harm, harm the proposed massive Spruce mountaintop removal mine would wreak if its permit was not vetoed. By protecting clean water, EPA is ultimately protecting human health, and as recent events have underscored, here in central West Virginia we cannot depend on the coal industry, nor state government to protect human health by protecting clean water. We need EPA to be able to keep a check on things."
Said Cindy Rank, Mining Committee Chair of West Virginia Highlands Conservancy:
"The need to prevent the kind of devastating harm to waters that would be caused by the Spruce mountaintop removal mine is exactly the reason Congress gave EPA the critical authority and responsibility to serve as a backstop of protection for clean water in America."
Said Vernon Haltom, executive director of Coal River Mountain Watch:
"It's absurd that we have to fight this hard to protect one site from mountaintop removal when there are so many threatening the health of mountain communities. We have to rely on the EPA to do the job clearly entrusted to them, because the West Virginia Dept. of Environmental Protection long ago abdicated their mission. To struggle so long for one site is all the more reason that we need to pass the Appalachian Community Health Emergency (ACHE) Act, HR 526."
BACKGROUND INFORMATION:
Spruce No. 1 Mine: In October 1999, the Spruce No. 1 Mine became the subject of the first significant federal court decision on mountaintop removal mining, won by individual community members and the West Virginia Highlands Conservancy (represented by Appalachian Mountain Advocates and Public Justice). That case -- in which the late Judge Charles Haden found that the Army Corps of Engineers' permit for the mine was unlawful -- initiated years of controversy and litigation over this proposed mine. In the meantime, the science accumulated showing how devastating this type of mining is for local waters and communities.
In January 2011, the EPA decided to veto the Spruce No. 1 Mine permit based on robust science showing the irreparable harm that would occur if the mining company were allowed to permanently bury and pollute natural headwater streams with mining waste. The permit would have allowed the Mingo Logan coal company to bury and destroy over six miles of pristine mountain streams under mining waste dumps (called "valley fills") created from the destruction of over 2,000 acres of land, releasing harmful pollutants into downstream waters that sustain local communities and wildlife. Appalachian citizen groups have been fighting to save the streams that would be destroyed by the Spruce Mine for more than a decade - as one of the largest, most harmful mountaintop removal mines ever proposed.
In this instance, EPA decided to veto the Spruce No. 1 mine permit after substantial new science had come to light, after consultation with the Corps, and after public notice and a hearing. EPA considered more than 50,000 written comments before issuing the veto. The vast majority (70%) supported EPA's veto. EPA based its decision in part on 100 scientific studies and data sources released after the permit was initially issued, including studies showing dramatic, irreversible harm to waters and revealing that industry-designed mitigation measures have repeatedly failed to protect waters. EPA applied its veto only to those parts of the permit that had been on hold for decades due to the longstanding court case in West Virginia.
Lower court decisions: In 2012, the D.C. district court ruled that EPA lacked authority to veto the permit after the Corps had issued it, without addressing the scientific merits of EPA's decision. In 2013, the D.C. Circuit (in an opinion by Judges Henderson, Griffith, and Kavanaugh) unanimously reversed the district court's ruling and upheld EPA's authority to veto whenever there is unacceptable harm, including after a permit has been issued. The full D.C. Circuit then denied the coal company's petition for en banc review.
Today's action: Today's denial of certiorari reaffirms what the D.C. Circuit decided -- that EPA has authority to veto a harmful permit after it is issued. The case now goes back to the district court to review the scientific merits of EPA's veto decision in this specific instance.
History of EPA veto authority: Out of the thousands of permits the Army Corps has issued to allow filling of U.S. waters during the last 41 years, including hundreds of permits for large-scale coal strip mines, this is only the 13th time EPA has ever exercised its authority under the Clean Water Act (33 U.S.C. SS 1344(c)) to prohibit, deny, or restrict (including to veto or withdraw) authorization to discharge dredged or fill material into U.S. waters. It is also the first such determination ever to protect U.S. waters from mining waste. EPA has exercised its veto authority with care, acting only in circumstances where the harm is truly extreme and unacceptable and where EPA action was necessary to prevent such harm.
The law: In 1979, EPA issued the regulations that govern the use of its veto authority and recognized that its Clean Water Act authority allows EPA to act whenever necessary to prevent unacceptable harm. The U.S. Army Corps of Engineers agrees that EPA had the full authority to veto the Spruce permit.
Specifically: the Clean Water Act plainly authorizes EPA to "prohibit," "deny[,] or restrict" "the specification (including withdrawal of specification)" for use of any U.S. waters as disposal sites for fill or dredged material, and to do so "whenever" the agency determines that this "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." 33 U.S.C. SS 1344(c). Although industry has argued that "whenever" does not allow EPA to act after the U.S. Army Corps of Engineers has issued a permit which contains such specifications, the law sets no such restriction on EPA's authority. Instead, the law makes the Corps' permitting authority "subject to [EPA's authority under 404(c)]" at all times. 33 U.S.C. SS 1344(b).
Pebble Mine proposed in Alaska: Using the same Clean Water Act authority, EPA last month initiated a process to prohibit dumping of waste from the proposed Pebble Mine, which would be the largest open pit in North America, into the headwater streams of Bristol Bay, Alaska, home to the world's most productive sockeye salmon fishery. The appellate court ruling in the Spruce Mine case, which the Supreme Court today allowed to stand, clarifies that EPA may exercise this authority "whenever" the agency determines that the dumping would cause unacceptable adverse effects.
RELEVANT DOCUMENTS:
- Petition for certiorari filed by Mingo Logan: https://earthjustice.org/documents/legal-document/pdf/court-document-peti...
- Solicitor General's brief in opposition to cert., on behalf of EPA: https://earthjustice.org/documents/legal-document/pdf/court-document-soli...
- Read the D.C. Circuit opinion, issued by Judges Henderson, Griffith, and Kavanaugh: https://www.wvgazette.com/mediafiles/document/2013/04/23/SpruceMineVetoAp...
- More information about EPA's Veto Determination for the Spruce No.1 Mine: https://water.epa.gov/lawsregs/guidance/cwa/dredgdis/spruce.cfm
- List of 13 EPA Determinations Under 404(c) of the Clean Water Act since 1979: https://water.epa.gov/lawsregs/guidance/wetlands/404c.cfm
- Amicus Brief filed by Local Community Groups in the D.C. Circuit in support of EPA: https://earthjustice.org/sites/default/files/Spruce%20Appeal%20Amicus%20B...
- EPA's Press Release on the Initiation of SS 404(c) Process for the potential Pebble Mine in the Bristol Bay Watershed in Alaska: https://yosemite.epa.gov/opa/admpress.nsf/names/r10_2014-2-28_bristol_bay
Earthjustice is a non-profit public interest law firm dedicated to protecting the magnificent places, natural resources, and wildlife of this earth, and to defending the right of all people to a healthy environment. We bring about far-reaching change by enforcing and strengthening environmental laws on behalf of hundreds of organizations, coalitions and communities.
800-584-6460LATEST NEWS
Police Violently Arrest University of Texas Students Protesting Genocide in Gaza
"After 205 days of genocide and almost 40,000 Palestinian martyrs, it is shameful that UT continues to invest in mass murder and resorts to brutal intimidation tactics to try to silence its own students," said one protester.
Apr 29, 2024
Around 40 peaceful pro-Palestine protesters were arrested Monday on the campus of the University of Texas at Austin as police once again violently cracked down on student-led demonstrations against their school and country's complicity in Israel's genocidal assault on Gaza.
UT students and allies are calling for not only an end to the Gaza genocide but also a suspension of U.S. military aid to Israel and the university's divestment from Israeli investments. Protesters chanted slogans including "We are being peaceful, you are being violent!", "There is no riot here, why are you wearing riot gear?", and "Let them go!" as state troopers aided by local and campus cops dragged, hauled, and even wheeled targeted individuals into custody.
"Our main goal is to get the University of Texas to divest."
Organizers said police used so-called "less-lethal" weapons including flash-bang grenades, mace, and "other chemical munitions" against protesters. National Lawyers' Guild volunteers attempted to collect information from arrestees and inform them of their rights.
"After 205 days of genocide and almost 40,000 Palestinian martyrs, it is shameful that UT continues to invest in mass murder and resorts to brutal intimidation tactics to try to silence its own students, who are bravely taking a stand against genocide," said Lenna Nasr of the Palestinian Youth Movement.
"We demand that UT divest from the Zionist state of Israel and from all institutions and companies that are enabling the current genocide in Gaza," Nasr added. "And, we demand the resignation of [UT president Jay] Hartzell for greenlighting the militarized repression of peaceful student protestors on their own campus."
Mustafa Yowell, a UT engineering student whose father is from Texas and mother is from the occupied West Bank, toldAl Jazeera: "Our main goal is to get the University of Texas to divest. Stop sending money to Israel and divest from companies that profit off of war like Raytheon and Lockheed Martin. It has nothing to do with antisemitism, or Islam, or being Arab. It's about human rights, conflict, and oppression that people face."
Police commanders eventually ordered officers to retreat from the UT campus, sparking a tremendous cheer from demonstrators, who followed and tried to block a bus loaded with arrested protesters.
Arrested students have reported mistreatment in police custody, including incidents of Islamophobia. One young Muslim woman told Al Jazeera that she was denied period products and was forced to wear blood-soiled clothing.
Some students said they did not plan on protesting but felt compelled after witnessing how police treated the nonviolent demonstrators.
"We weren't planning on doing anything like this until we saw students' heads getting smashed into the ground up the road," Joseph Ely, a graduate student and president of the Palestine Solidarity Committee at Texas State University in San Marcos, about 30 miles southwest of Austin, toldKUT News. "It was really the police at the University of Texas that provoked us to do this."
Republican Texas Gov. Greg Abbott weighed in on the arrests in a social media post declaring that "no encampments will be allowed."
In response, Congressman Joaquin Castro (D-Texas) accused Abbott of "escalating the situation at UT Austin and putting Texas students and journalists in danger."
Monday's arrests follow last week's violent raid on pro-Palestine protesters at UT, during which dozens of people were arrested and at least one journalist and professor were brutalized along with numerous student protesters. Monday's action also came amid a growing wave of nationwide campus demonstrations against the Gaza genocide and complicity by the U.S. government and universities.
Keep ReadingShow Less
Poor People's Campaign Plans June 29 Mass Assembly, March in DC
"This is a crisis moment for our democracy," said one campaigner. "We need for our political leaders to become moral leaders and take seriously the needs and priorities of the millions of people struggling simply to survive."
Apr 29, 2024
Leaders of the Poor People's Campaign: A National Call for Moral Revival on Monday announced plans for the Mass Poor People & Low-Wage Workers' Assembly & Moral March in Washington, D.C. on June 29, just over four months before the U.S. elections.
The aim of the assembly and march is to "mobilize the one-third of the U.S. electorate who are poor and low-wage infrequent voters" as well as to pressure political leaders to embrace a 17-point agenda during the 2024 election cycle and beyond.
"It does not stand to reason—morally, economically, or politically—that in the richest nation in the history of the world, 800 people die every day from poverty and low wealth," declared Bishop William J. Barber II, co-chair of the Poor People's Campaign and president and senior lecturer of Repairers of the Breach. "Politicians then made the conscious choice to increase poverty to where it was before—an unconscionable reminder that mass poverty is a political choice, not an inevitable law of nature."
"We are here to say we must restore the moral conscience of this nation, and elect leaders across the country who will make different choices—not to raise poverty, but to lower it; not to give out tax breaks to wealthy corporations, but to those who are struggling to make ends meet," he continued. "These are the priorities of one-third of the U.S. electorate, and any candidate interested in activating these voters must speak to our issues and our values."
The agenda, revealed during the campaign's Monday press conference, is:
- Abolishing poverty as the fourth-leading cause of death in the U.S.
- A living minimum wage of at least $15+/hour (indexed for inflation)
- Full and expanded voting rights
- No more voter suppression
- Guaranteed workers' rights and labor rights
- Healthcare for all
- Affordable, adequate housing
- Strong social welfare and safety net programs
- An end to gun violence, profit, and proliferation
- Fully protected women's rights
- Environmental justice that secures clean air and water
- Justice for all Indigenous nations
- Fully funded public education
- Just immigration laws
- Addressing militarism and the war economy
- Standing for peace not war; an immediate cease-fire in Gaza that allows humanitarian relief, the release of all hostages, and peace with justice to be pursued; and an end to genocide around the world
- An end to hate, division, and the extremist political agenda
"We are a resurrection of the unheard voices in this democracy, not an insurrection," said Rev. Dr. Liz Theoharis, co-chair of the Poor People's Campaign and director of the Kairos Center for Religions, Rights, and Social Justice. "After years of historic union drives and grassroots organizing, we are demonstrating our power at the polls in 2024. We will elect leaders with the courage to abolish poverty, raise wages, safeguard voting rights, and meet the basic needs of struggling families."
In addition to Theoharis and Barber's groups, supporters of the assembly and march include the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Christian Church Disciples of Christ, Common Cause, Fellowship of Affirming Ministries, Good Trouble, Kentuckians for the Commonwealth, Make It Plain, National Council of Churches, National Council of Jewish Women, Service Employees International Union, and Union of Southern Service Workers.
"Workers' rights, civil rights, and human rights are on the ballot this election. American voters will decide: Do we want to stay the course and keep on this path toward a more compassionate government or revert back to this morally bankrupt nation?" said Fred Redmond, secretary-treasurer of the AFL-CIO. "The American labor movement is committed to registering and mobilizing union members and union families around the mass mobilization on June 29. We're going to elect lawmakers who will advocate for workers and poor people to elect leaders who will put people over profits, protect our democracy, and advance worker and civil and human rights."
In addition to choosing between Democratic President Joe Biden and former Republican President Donald Trump, U.S. voters in November will decide which party controls each house of Congress. There will also be various consequential local and state elections, including ballot measures to protect key rights such as access to abortion care.
"This is a crisis moment for our democracy," stressed Rosalyn Pelles, a senior advisor to the Poor People's Campaign. "In order for our nation not to continue down the path of autocracy, we need for our political leaders to become moral leaders and take seriously the needs and priorities of the millions of people struggling simply to survive."
"Congress must lead, by bringing forward comprehensive legislation to restore the child tax credit and raise the minimum wage," Pelles argued. "The media must do more, by covering the experiences of people struggling to get by, not just the words and whims of the wealthy and powerful. And the White House must treat poverty like the crisis it is, if this administration is serious about saving our democracy. We all must act, and that is what June 29th is all about."
Keep ReadingShow Less
'We Do Not Support' ICC Probe of Israeli War Crimes in Gaza, Says White House
"ICC warrants against Israel and Hamas will offer the West a choice: Either torpedo the international criminal justice project they have advanced since 1945 for good or hypocritically demand impunity for Israeli war crimes."
Apr 29, 2024
White House Press Secretary Karine Jean-Pierre on Monday reaffirmed the Biden administration's opposition to the International Criminal Court potentially issuing an arrest warrant for Israeli Prime Minister Benjamin Netanyahu or other top officials related to Israel's war on the Gaza Strip.
"Would the U.S. or the White House see any potential arrests by the ICC as an aggravating factor in the negotiations?" one journalist asked about talks to end the bloodshed and free hostages.
Jean-Pierre responded: "So, we've been really clear about the ICC investigation. We do not support it. We don't believe that they have the jurisdiction. And I'm just gonna leave it there for now."
#WATCH | On International Criminal Court's (ICC) investigation into Israel's conduct in Gaza, White House press secretary Karine Jean Pierre says, "...We don't believe is in the ICC jurisdiction in this situation. We do not support the investigation. And I think that kind of… pic.twitter.com/du8NpEtLxj
— ANI (@ANI) April 29, 2024
Asked later about President Joe Biden's Sunday call with Netanyahu and whether the U.S. government is involved in any attempts to avert warrants from the Hague-based court, the press secretary echoed her previous comments.
The exchanges followed reporting that the Israeli government, in partnership with the U.S., is "making a concerted effort to head off" possible arrest warrants from the ICC targeting Netanyahu as well as Israeli Defense Minister Yoav Gallant and Israel Defense Forces (IDF) Chief of Staff Herzi Halevi.
Citing two unnamed Israeli officials, Axiosreported that Netanyahu on Sunday asked Biden to help prevent the ICC from issuing warrants. A spokesperson for the White House National Security Council told the outlet that "as we have publicly said many times, the ICC has no jurisdiction in this situation and we do not support its investigation."
Neither Israel nor the United States is a party to the Rome Statute of the International Criminal Court, the treaty that established the tribunal, but Palestine accepted its jurisdiction over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem," in 2015.
The ICC formally launched its war crimes investigation in the occupied Palestinian territories in 2021, long before the IDF began its ongoing retaliation for the Hamas-led attack October 7 on Israel. The probe includes crimes going back to June 13, 2014.
Urging Biden "to intervene as part of the administration's ongoing commitment to Israel," U.S. Sen. John Fetterman (D-Pa.) on Monday declared that "it would be a fatal blow to the judicial and moral standing of ICC to pursue this path against Israel."
Mark Kersten, an assistant professor at the University of the Fraser Valley, responded: "Now a Democratic senator is threatening the ICC's very existence if it does what it was created to do: Impartially and independently investigate international crimes, without fear or favor. I hope this grotesque threat and atrocity-denialism is roundly condemned."
Also noting Fetterman's comments, Alonso Gurmendi, a lecturer in international relations at King's College London, said: "They really don't realize just how isolated Western governments are on this. Even among their own populations. This won't be a fatal blow to the ICC. It will relaunch its relationship with the global majority. Fighting this will only isolate and weaken the West further."
In January, the International Court of Justice found that Israel is "plausibly" engaged in genocide in Gaza. As of Monday, the Israeli bombardment and blockade had killed at least 34,488 Palestinians in the Hamas-governed strip, injured another 77,643, left thousands more missing in bombed-out communities, and displaced around 90% of the enclave's 2.3 million people.
Since October, the United States has ramped up its billions of dollars in military support for Israel. The Biden administration has been accused of being complicit in genocide in federal court. The next hearing in the case is scheduled for June.
Keep ReadingShow Less
Most Popular