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Judge Takes on Bush on Mountaintop
By FRANCIS X. CLINES
New York Times
Sunday, May 19, 2002; Page A16
Mountaintop removal mine near Scarlet,
West Virginia. Photo from U.S. Environmental Protection
LEWISBURG, W.Va., May 16 - The
towering strip mining machines that have been systematically
decapitating mountains in Appalachia have once again run up against
a flinty federal judge convinced that government agencies illegally
allow the coal industry to pollute and obliterate the region's vital
waterways with millions of tons of waste.
In a direct challenge to the Bush
administration, the judge, Chief Judge Charles H. Haden II of the
Southern District of West Virginia, found last week that the
administration's new rule change that allows the dumping of mining
rock and dirt into the streams and valleys of Appalachia is an
"obvious perversity" of the Clean Water Act.
"The rule change was designed
simply for the benefit of the mining industry and its
employees," Judge Haden ruled. He
ordered the Army Corps of Engineers to stop issuing permits to
companies that have been dumping millions of tons of waste into
hundreds of miles of waterways and hollows in the mining practice
known as mountaintop removal. This is the process of blasting away
mountaintop rock to reach low-sulphur coal veins with mammoth
bulldozers and drag lines. The practice pours waste down into the
mountain hollows, where residents have been increasingly displaced
or bought out by the companies.
Haden's ruling has stunned the Appalachian coal industry, which
warns that the decision could, in theory, shut down any mine in the
nation that dumps waste into water. But it has cheered environmental
groups that have been contending that the Bush administration,
mindful of three critical electoral votes Republicans won here in
the close 2000 presidential election, has rewarded the coal industry
with job appointments and policy accommodations.
The administration, insisting its new
rule on mining waste protects the environment, warned this week that
the court ruling will mean "severe economic and social hardship
for the region," with tens of thousands of jobs at risk along
with hundreds of millions in state revenue and profits in related
"Mining companies will almost
certainly suspend future mining projects in the Appalachian region,
lay off existing workers and abandon plans for hiring new
ones," Glenda E. Owens, deputy director of the United States
Department of Interior for surface mining, cautioned this week in
urging Judge Haden to stay his order pending an appeal. The judge is
not expected to rule on the stay until next month.
"That's a red herring,"
said Joe Lovett, director of the Appalachian Center for the Economy
and the Environment, one of the litigants suing the corps of
engineers. Mr. Lovett said the ruling, if upheld, would protect
communities, streams and hardwood forests from destruction and
encourage a more balanced economy in lumbering and better controlled
underground and strip mining.
Judge Haden has been over this legal
terrain before. In
1999, he ruled that state agencies had failed to enforce federal
environmental protection laws affecting mountaintop removal. Under
the process, hundreds of square miles of mountains have been leveled
and dozens of communities have been bought out. Judge Haden's
decision in that first suit was overturned on appeal a year ago.
Without ruling on the merits of the complaint, a panel of the
appeals court found that West Virginia had constitutional immunity
against the lawsuit.
It was filed by a resident who had
held out against a buyout when his neighbors abandoned Pigeon Roost
Hollow in Blair, W.Va., as waste descended. The new, broader lawsuit
was filed against the federal government by community and
environmental groups in a four-state coal region of Appalachia.
a mine waste permit last year on the West Virginia-Kentucky
border, the groups, operating as Kentuckians
for the Commonwealth, charged that the Army Corps of Engineers
illegally favored the coal industry by permitting destructive waste
disposal in violation of corps regulations that specifically ban
Judge Haden agreed. The judge shocked
the mining industry and environmentalists by reaching beyond the
issue of existing regulations to strike down the Bush
administration's new rule regarding the dumping of rock and dirt. He
said the rule was an effort by federal agencies "to legalize
their longstanding illegal regulatory practice." A change that
basic, Judge Haden wrote, could only be tried "in the sunlight
of open Congressional debate and resolution, not within the murk of
administrative after-the-fact ratification of questionable
Industry and government warn of
economic ruin from the ruling, with 28,000 miners now at work in the
$6.3 billion mining industry in West Virginia and Kentucky, mainly
mountaintop removal. The mining industry insists it dumps fill only
in seasonal streams, not those running year round, and notes that
some companies invest in modified restoration of the shaved
The full damage from the stream
dumping is only beginning to emerge, said Mr. Lovett and his
co-counsel in the lawsuit, James M. Hecker of Trial Lawyers for
Public Justice. They have used the Freedom of Information Act to
reports in a federally ordered consultant's study of environmental
effects. Mr. Lovett said the consultants found that the mining
industry would be more inconvenienced than devastated by proper
application of the Clean Water Act.
Coal industry officials, with
hundreds of waste applications pending, are counting on another
victory on the appeals level to void Judge Haden's latest finding.
In making his 1999 decision, the judge not
only hiked to Pigeon Roost Hollow to view that site but also flew
over the region's many mountaintop removal sites.
"The sites stood out among the
natural wooded ridges as huge white plateaus," he wrote,
"and the valley fills appeared as massive, artificially
landscaped stair steps. Tree growth was stunted or nonexistent. The
mine sites appear stark and barren and enormously different from the
The judge wondered at all the absent
wildlife that "can't be coaxed back." He concluded,
"These harms cannot be undone."