Judge Blocks Mountaintop Removal Permits

Judge blocks mountaintop removal permits

By Ken Ward Jr. - Staff writer, Gazette-Mail

23rd March 2007

A federal judge late Friday blocked four Massey Energy mountaintop removal mines, in a ruling that could have broad effects on West Virginia's coal industry.

U.S. District Judge Robert C. Chambers ruled that the federal Army Corps of Engineers did not properly review the potential impacts of the four permits. The judge rescinded the permits and sent them back to the corps for a new review.

"At a minimum, the corps must examine and then explain how this added destruction of headwaters streams, in view of the significant loss of streams in the watershed, will not result in a significant impact on the environment," Chambers wrote in an 89-page ruling released after business hours on Friday evening.

The lawsuit directly affects permits for Massey's Camp Branch, Republic No. 2, Laxare, and Black Castle mines in Southern West Virginia, according to court records.

Chambers ruled just as Massey subsidiary Aracoma Coal was preparing to begin operations at the Camp Branch mine, as an agreement with environmental groups to hold off until the judge ruled was expiring on Friday.

In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal reserves. Leftover dirt and rock is dumped into nearby valleys, burying streams.

Between 1985 and 2001, more than 1,200 miles of Appalachian streams were buried or otherwise damaged by mountaintop removal, according to a federal government study. Without additional restrictions, the May 2003 study projected, a total of 2,200 square miles of Appalachian forests will be eliminated.

Over the last seven years, two federal judges in West Virginia have issued rulings to more tightly regulate mountaintop removal. Those rulings, by the late Judge Charles H. Haden II and Judge Joseph R. Goodwin, were both overturned by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

The case before Chambers is a follow-up suit to Goodwin's ruling, which blocked the corps from reviewing valley fill proposals through a streamlined "general permit" process.

With their new case, the environmentalists argue that the corps was wrong to approve mining operations through more detailed "individual permit" reviews.

In October, the judge heard about 32 hours of testimony over six days in the case filed by the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and Coal River Mountain Watch.

Environmental group lawyers argue that the corps should be forced to conduct a lengthy study, called an Environmental Impact Statement, or EIS, on Clean Water Act "individual permits" for each and every mountaintop removal mine proposal.

Chambers was expected to rule specifically on the four Massey permits, but his decision could likely have a much broader impact on the state's coal industry, setting rules for future permit reviews by the corps.

Key to the case is whether the corps properly examined if valley fills create significant adverse environmental impacts, and if the agency spelled out a well-reasoned decision on that issue in its permit approval documents.