Ten years ago today, U.S. District Judge Charles H. Haden II issued a landmark ruling on mountaintop removal coal mining.
In short, Judge Haden declared that a mining “buffer zone” rule prohibited coal operators from burying all but the smallest streams with waste rock and dirt from strip mines. You can go back and read his ruling here.
A couple of passages from his 49-page opinion and order still stick in my head today:
When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments. The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect.
If there were fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration.
Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream, there is no water quality.
When coal industry officials and supporters went berserk (then-West Virginia Gov. Cecil Underwood called Haden’s decision “one of the darkest days in the history of our state“), the judge suspended his ruling, saying:
… The court believes it preferable to attempt to defuse invective and diminish irrational fears so that reasoned decisions can be made with all deliberate speed, but with distractions minimized.
Seems like coal industry officials and some of our politicians (especially Gov. Joe Manchin) might want to re-read that, given the events and the rhetoric of the last week or so.
And revisiting Judge Haden’s ruling — and all that has come after it in the last decade — might be worth it today. The very issue Haden took on — how the stream buffer zone rule applies to mountaintop removal — is still not resolved. More importantly, elected officials and regulators in Appalachia have dodged making real and difficult decisions about this mining practice for years, pushing all sides of the issue much closer to not just unpleasant shouting matches, but violent altercations.
Judge Haden (in the green hat) looks at mining plans with engineer John Morgan and environmentalist Cindy Rank during a court tour of Arch Coal Inc.’s Dal-Tex Mine in 1999.
With that in mind, let’s start with another important part of Haden’s Oct. 20, 1999, decision that is worth revisiting. It’s at the end, under the unusual heading, “Observation.”
Judge Haden noted that the state Department of Environmental Protection and the coal industry had complained that his ruling “would not only end mountaintop mining but virtually all types of mining by elminating valley fills.” The judge noted that the federal Office of Surface Mining Reclamation and Enforcement had considered that very question when it wrote the buffer zone rule in 1979. Some commenters on the proposed rule wanted the buffer zone protections to apply only to perennial streams, but OSMRE responded:
This would reduce operator cost and increase coal production from deposits underlying perennial streams. The Office believes that this alternative is illegal; however, because there are significant fish and wildlife resources in streams other than perennial streams that need protection …
Based on that, Judge Haden observed:
Thus, coal production and surface mining were considered when the regulations were promulgated. The regulator OSM nevertheless concluded that destruction of streams below natural drainways was illegal.
… To the extent misapprehension of the buffer zone rule was fostered by the Director or other agencies, the public and the remaining parties have been done a disservice. However, if application of the buffer zone rule, a regulation under federal law, prevents surface coal mining or substantially limits its application to mountaintop removal in the Appalachian coalfields, it is up to Congress and the Legislature, but not this Court, to alter that result.
Of course, Haden’s decision on the buffer zone was thrown out. But the 4th U.S. Circuit Court of Appeals never ruled on the merits of the issue. Instead, it tossed the decision on a complicated point about court jurisdiction.
So the buffer zone controversy went on … and the Bush administration stepped in to try to resolve it in the coal industry’s favor. OSMRE essentially eliminated the buffer zone protections, putting in their place requirements that coal operators generally try to make valley fills smaller. Soon after taking office, Interior Secretary Ken Salazar tried to revert to the much stronger and more straight-forward ban on mining activities within 100 feet of streams. A federal judge blocked that manuever, which Salazar had tried to take without allowing any public comment or hearings.
Reversing the Bush changes to the buffer zone rule was a big part of the Obama administration’s announced plan to take “unprecedented steps” to reduce mountaintop removal’s environmental impacts. But now, the administration isn’t saying what it’s going to do about the buffer zone rule — whether it will try another route to repeal the Bush changes or otherwise seek to again give streams the protections Judge Haden talked about. Key to the uncertainty here is that the Obama administration has declined to say if it wants to apply the buffer zone to the footprint of valley fills or not.
But that’s really a small part of the unfinished business from Judge Haden’s decision and the Bragg v. Robertson mountaintop removal litigation. Recall that part of that litigation was settled, with a promise from the federal government to conduct a detailed study of mountaintop removal’s impacts on communities and the environment, and to issue new rules to reduce those impacts.
Well, the government conducted that study … it spent years and millions of dollars on it. The conclusions were clear: Mountaintop removal was devastating Appalachian forests, mountains, streams and communities. But what happened? Coal industry lobbyists who were running the Bush administration’s Interior Department hijacked the study, using it instead to push for things like the weakening of the buffer zone rule, and other measures to “streamline” permit processing for mine operators.
Some reforms did grow out of the Bragg case. West Virginia’s Environmental Secretary, Randy Huffman, outlined some of those improvements — a new AOC formula and flood-prevention rules, for example — in his June testimony to a Senate committee in Washington. But the buffer zone gutting was not the only move in the opposite direction. The Bush administration also rewrote the Clean Water Act “fill rule” to protect coal and abandoned any effort to come up with rules to specifically limit the size of valley fills.
Today, understanding of and opposition to mountaintop removal has spread around the country. Many folks in the national and local environmental movements want an all-out ban on the practice, not the increased regulation that the Obama administration talked about. Some young activists vow to continue peaceful protests until that’s what happens.
West Virginia’s elected officials and political leaders talk a good game about balance, and about wanting the coal industry to continue, but simply be properly regulated.
But when the Bush administration was dismantling efforts to tighten regulation of mountaintop removal, none of the state’s Democratic political leaders spoke out against what was happening. Did they support what Bush was doing, or just hope to stay out of the fray?
The closest any West Virginia leaders came to taking a stand against Bush’s pro-industry maneuvering was when House Natural Resources Chairman Nick J. Rahall held a committee hearing two years ago to mark the anniversary of the passage of the federal Surface Mining Control and Reclamation Act. But as far as I can tell, that committee hearing resulted in no actions or initiatives to fix the problems outlined by the coalfield citizens who testified.
So after 10 years, we’re all back where we started … yelling at each other, with no end to the battle in sight. You have to wonder what would have happened if West Virginia political leaders had stood up to Bush’s efforts to reverse the reforms that Bragg case promised … or what if, in their zeal to ensure mountaintop removal isn’t banned, West Virginia leaders came up with a real plan to limit its impacts on coalfield communities and the environment?
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Ken says, “So after 10 years, we’re all back where we started.”
There have been some MTR-related factual and physical changes in the past ten years, though.
Since 1999 a lot of steel has been made, aluminum has been smelted, and electricity has been generated to light up the parking lots at Wal-Mart and run the MRI scanner at CAMC hospital, etc. — using MTR coal.
And since 1999, a big chunk of Appalachian streams and forestland is trashed forever — not that the absentee coupon-clipping landowners give a darn, for they are a lot richer than they were a decade ago!
And since 1999, a lot of MTR miners’ and truck drivers’ kids have grown up and graduated (or not) from school, etc. ; more streams polluted, roads ruined by overloaded trucks, etc.
I guess Ken is saying that the key legal and political issues surrounding mining are still unresolved — but, truly, who ever predicted that they would be? Given the power and importance of coal owners and coal-related businesses and workers, that these issues would not be “resolved” in a decade was pretty obvious — ten years ago.
No predictions — but more of the same, with hopefully a better trend line, looks like something that may be in the cards. “No end in sight”? I think Ken maybe got that one right.
Thanks, Ken for the anniversary gift.
Tom Rodd, BTW, was the first person I ever heard apply the term “national sacrifice zone” to the MTR mess.
Also a kudo or two to Joe Lovett & friends for bringing the issue to Judge Haden in such a clear form and to the Judge, a Republican with family members in the coal business, for seeing the issue so clearly and putting his findings & conclusions in such a powerful form!
Optimist that I am, I think the nationwide attention. the publicity on the fakery of nationwide permits, the tree-sitting, the Obama administration, the ubiquitous photos of the vast destruction . . . all point to a change in the right direction.
Seems that this anniversary should be memorialized annually of every decade.
Maybe there should be a memorial web page for it.
A shame that the Obama Administration is allowing this Bush Administration policy decision (made on 10/21/05) to continue:
http://groups.google.com/group/bob-mooney/web/watson-letter-10-21-05
Sadly we all know that had MTR been ended 10 years ago, the coal companies would have gotten most of the coal through other methods, many mining jobs would not have been lost and nearly all of the environmental devastation would not have taken place. Coming on the heels of yesterday’s performance by the governor, today’s anniversary is truly a tragic one.
Ken,What a great job you do. Thank you.
Below are excerpts from a MOU that are pertinent to what Judge Haden ruled in 1999. Someone else noted these to me.
MEMORANDUM OF UNDERSTANDING AMONG THE
U.S. DEPARTMENT OF THE ARMY,
U.S. DEPARTMENT OF THE INTERIOR,
AND U.S. ENVIRONMENTAL PROTECTION AGENCY
IMPLEMENTING THE INTERAGENCY ACTION PLAN ON APPALACHIAN SURFACE COAL MINING1
JUNE 11, 2009
http://www.epa.gov/owow/wetlands/pdf/Final_MTM_MOU_6-11-09.pdf
(Excerpts)
1 For purposes of this MOU, “Appalachian surface coal mining” refers to mining techniques requiring permits under both the Surface Mining Control and Reclamation Act (SMCRA) and Section 404 of the Clean Water Act (CWA), in the states of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia.
—-
The elements of the plan are:
– A series of interim actions under existing authorities to minimize the adverse environmental consequences of Appalachian surface coal mining;
– A commitment by the agencies to investigate and, if appropriate, undertake longer term regulatory actions related to Appalachian surface coal mining;
– Coordinated environmental reviews of pending permit applications under the Clean Water Act (CWA) and Surface Mining Control and Reclamation Act (SMCRA); and
– A commitment to engage in robust public participation, through public commentvmechanisms and Appalachian public outreach events, helping to inform Federal,vState, and local decisions.
—-
Before the end of 2009, DOI will take the following steps:
– If the 2008 Stream Buffer Zone Rule is vacated by the U.S. District Court for the District of Columbia in Coal River Mountain Watch et al v. Kempthorne, 1:08-cv-02212-HHK C, as requested by the Secretary of the Interior on April 27, 2009, the Office of Surface Mining Reclamation and Enforcement (OSM) will issue guidance clarifying the application of the 1983 stream buffer zone provisions to further reduce adverse stream impacts.
– OSM will reevaluate and determine how it will more effectively conduct oversight of State permitting, State enforcement, and regulatory activities under SMCRA.
– OSM will remove impediments to its ability to require correction of permit defects in SMCRA primacy states.
—-
…LONGER TERM REGULATORY ACTIONS…
The signatory agencies will review their existing regulatory authorities and procedures to determine whether regulatory modifications should be proposed to better protect the environment and public health from the impacts of Appalachian
surface coal mining. At a minimum, the agencies will consider:
– Revisions to key provisions of current SMCRA regulations, including the Stream Buffer Zone Rule and Approximate Original Contour (AOC) requirements;
—-
The signatory agencies will create an interagency working group to coordinate the development of short-term actions, longer term regulatory actions, and coordination procedures for Appalachian surface coal mining. The group will ensure robust public involvement in the development of any proposed actions or regulatory reforms.
—-
Surface Mining Control and Reclamation Act
During 2009, OSM will issue guidance concerning appropriate application of the Stream Buffer Zone rule and other related rules and will ensure that states are implementing their counterpart provisions and SMCRA regulatory programs consistent with the guidance.
—-
I am sure that there will be a big ole party at the paper for Ken, James, Larry and lots more of their friends just as soon as those bad ole coal miners lose the jobs that provide for the wives and kids. I guess when they realize what they have been doing for all these years and see the error of their ways it will be some sight to see when we all come together. Heck I have been waiting since 1999 to lose my job again Ken. I have already been asking our representatives to give me a heads up on a green job. We made windmills in the Cub Scouts and it didn’t seem to hard . Now I guess it would be a much larger scale. Wonder what it will pay? Da-gone it just crossed my mind. Where will we build the windmills? In the valley’s or on the ridgelines along the miles and miles of gas roads we are so proud of here in this state. Wonder how many square miles the well sites and roads represent compared to a surface mine site? Maybe that can be your next quest after mining. Look around as you drive to the mine properties to protest. Film the logging sites and the well roads or just follow the trucks with 5 or 6 atv’s on a trailor and see where they are headed. Man they must really be careful when they build their roads, drilling pads and trails because we never here about them killing any animals or displacing any creatures with the con-I mean des-truction they cause. I am just guessing but there seems to be a double standard here. Tell me why you don’t protest any company that moves the earth or drills a hole or cuts a tree. How can you call yourselves environmentalists when you driving by the very things that you profess to make you sick. More than likely you walked a gas road or a logging road to get to the mine site, now didn’t you?
MTR is the answer to my question. You can build the windmills on the reclaimed acre’s on the mine sites since you don’t think the land is worth anything anyway. Imagine that.
Steve,
Thanks for reading and commenting … but I’m not sure … is there a point in there somewhere about Judge Haden, the consent decree that came out of the Bragg case, and the follow-up the government has — and hasn’t made — to the things in that consent decree?
Do you think the buffer zone rule should be changed? In what way? Do you have some proposed language?
What parts of the EIS on mountaintop removal have you reviewed and what is your take on the findings?
Have you reviewed any data concerning wind currents in the southern coalfields of West Virginia, and what impact lowering the ridges might have on the ability to put wind energy facilities there after mining?
I can certainly understand your concern about having a job. But perhaps you could try to add more to the discussion than simply venting your frustrations onto the comments section of the blog.
Thanks, Ken.
Ken,
Sorry I can’t seem to see the Judge Haden ruling in the same light as you. I have lived through the results of his ruling. I was there went as a group we were informed that as of July 23, 1999 Dal-Tex would close. I went to the meetings and listened to James Weekly cry about his way of life and how the mine would effect his family. Maybe thats why he dumped his trash on the mine property .That may be why people used to drain the oil out of their engines into the creek. I saw how some people forced the price of their homes up by way of environmental impact until they got the magic number then they were gone.
You ask me about the EIS and what parts I have reviewed. What data did you review after Dal-Tex shut down. How many families left there homes to find a jobs somewhere else. How many homes were broken apart by the Judges ruling. You review that data and tell me not to vent.
Steve,
Thanks again for reading and for taking the time to respond.
Certainly, I — and I think all Coal Tattoo readers — can understand your anger at losing your job.
You are certainly welcome to continue contributing to the discussion on these issues.
But no more personal attacks on individuals, and no ranting. This is a place for discussion, not venting.
Ken.
What is happening now with the jobs in the coalfields is nothing new. This same thing happened in the 50′s and in the 80′s. It was not due to environmental problems, it was economic problems. In the 50′s there were no safety nets for folks who lost their jobs and they left here in droves, many of my family members moved away and never came home. During the 80′s many of the people who lost their jobs retrained into other fields. When the mines did call back they didn’t recall everyone. Nobody starved, life went on.
What do you think all these miners did who lost their jobs over the years due to mechanization and the fact that many of the non union mines wouldn’t even hire a former union miner? They retrained and moved on with their lives.
I look at it this way, our regulatory agencies have been like a very lenient or even a negligent parent, allowing their kids to do whatever they wanted legal or not. Now those kids are living with new parents who are laying down rules and the kids are rebelling. The rules have always been there, however the new parents are enforcing the rules which should have been followed all along. We wouldn’t be in this mess if the agencies involved would have been diligent in doing their jobs in previous years.