Earthjustice Seeks Supreme Court Review in Mountaintop Removal Mining Case

Earthjustice and the Appalachian Center for the Economy & the Environment have filed a petition
with the U.S. Supreme Court that asks the Court to review a recent
decision by the U.S. Court of Appeals for the Fourth Circuit in a
controversial mountaintop removal mining case. The case challenges the
U.S. Army Corps of Engineers' issuance of permits allowing companies to
dump waste from mountaintop removal mining into streams without
following basic requirements of the Clean Water Act designed to prevent
irreversible harm to the nation's waters.

"This case is of great national importance," said Earthjustice
attorney Steve Roady. "The Corps of Engineers is ripping the heart out
of the Clean Water Act by granting permits that allow coal companies to
permanently entomb vital streams in the rubble of exploded mountains.
The destruction caused by mountaintop removal mining is enormous and
the adverse impacts on local communities are profound. We're asking the
Supreme Court to hold the Corps accountable."

Earthjustice and the Appalachian Center for the Economy & the
Environment filed this lawsuit challenging several West Virginia
mountaintop removal permits in September 2005 on behalf of the Ohio
Valley Environmental Coalition, West Virginia Highlands Conservancy and
Coal River Mountain Watch. The lawsuit challenged the Corps' violation
of the Clean Water Act by authorizing the permits to fill 23 valleys
and 13 miles of mountain streams in southern West Virginia without
first performing even the most basic, legally required assessment of
the harm that would occur when the streams are buried forever.

"The Supreme Court must intervene in a case that strives to provide
essential protections for Appalachian mountain streams under the Clean
Water Act," said Joe Lovett, executive director of the Appalachian
Center for the Economy & the Environment. "The Corps has not
adequately controlled mountaintop mining removal activity and has
allowed for the wholesale destruction of our vital waterways."

The U.S. District Court for the Southern District of West Virginia
in March 2007 found those permits violated the Clean Water Act. In
February, a panel of federal judges in the U.S. Court of Appeals for
the Fourth Circuit ruled 2 to 1 in favor of the Corps in the case, with
a strong dissent from one judge on the panel. Earthjustice then
requested rehearing by the full court of appeals, but in late May, by a
close vote of 4 to 3, with 4 additional judges abstaining from the
vote, the court denied that petition.

However, two judges filed dissenting opinions, each of which Judge Diana Gribbon Motz joined.

In his dissent, Judge J. Harvie Wilkinson wrote that he voted for
the full court of appeals to hear the case because of "the potentially
irreversible effects that the permitted operations will have on the
Appalachian ecosystem." He concluded: "The requirements of the Clean
Water Act are important. . . . Once the ecologies of streams and rivers
and bays and oceans turn, they cannot easily be reclaimed. More often
than not, the waterway is simply gone for good."

In his dissent from the denial of rehearing, Judge M. Blane Michael,
who also had dissented from the panel's decision, explained that: "The
ecological impact of filling headwater streams with mining overburden
is both profound and irreversible . . . . No permit should issue until
the Corps fulfills each distinct obligation under the controlling
regulations. And this court should not defer to the Corps until the
agency has done its job."

"We're constantly hearing about the decreasing amounts of clean
water within our nation as well as 'water wars' between states," said
Janet Keating executive director of the Ohio Valley Environmental
Coalition. "Yet the coal industry is recklessly burying and polluting
our headwater streams under millions of tons of mining waste in central
Appalachia. We hope that the Court realizes how vital, urgent and
necessary their input is on this matter."

"Scientific studies show time and time again that mountaintop
removal does horrible damage to our nation's water supplies," said
Vernon Haltom, co-director of Coal River Mountain Watch. "It's now time
for the nation's high court to uphold the laws intended to protect our
communities from polluting industries that care only for their profit
margin."

"In allowing high mountain headwater streams to be filled with waste
rock, the Corps has allowed total disruption of the hydrology of
hundreds of square miles of ancient mountains and the natural and human
lives those ground and surface waters have supported for centuries,"
said Cindy Rank, chair of the West Virginia Highlands Conservancy
Mining Committee. "The future well-being of the region depends on
stricter adherence to the nation's environmental laws."

Mountaintop removal mining is a method of strip mining in which coal
companies use explosives to blast as much as 800 to 1000 feet off the
tops of mountains to reach coal seams underneath. The result is
millions of tons of waste rock, dirt, and vegetation dumped into
surrounding valleys, burying miles and miles of streams under piles of
rubble hundreds of feet deep. Mountaintop removal mining harms not only
aquatic ecosystems and water quality, but also destroys hundreds of
acres of healthy forests and fish and wildlife habitat, including
habitat of threatened and endangered species, when the tops of
mountains are blasted away. As of 2002, the Appalachian region had
already lost 1,200 miles of mountain streams to this destructive
process-and the Environmental Protection Agency has predicted that this
could rise as high as 2,400 miles by the year 2013 if current practices
continue.

This practice also devastates Appalachian communities -- in West
Virginia, Kentucky, southern Virginia and eastern Tennessee -- and
cultures that have existed in these mountains for hundreds of years.
Residents of the surrounding communities are threatened by rock slides,
catastrophic floods, poisoned water supplies, constant blasting and
destroyed property.

Additional Resources:

The EPA's Environmental Impact Statement on mountaintop removal mining can be found here: https://www.epa.gov/region3/mtntop/eis2005.htm

Pending permits can be searched here: https://www.appalachian-center.org/foia/

A map of permits in West Virginia can be found here: https://www.earthjustice.org/library/maps/westva-mining-permits.pdf