Unprecedented Ruling Protects Environment From Hobet Mining Plans
Trial Lawyers for Public Justice (TLPJ) and Mountain State Justice (MSJ) won a landmark court order yesterday blocking state and federal permits for the largest moutaintop removal mine in West Virginia history. In the first ruling of its kind, Chief Judge Charles H. Haden II of the federal district court in Charleston, West Virginia, granted the motion for a preliminary injunction sought on behalf of the West Virginia Highlands Conservancy and ten West Virginia citizens against Hobet Mining Inc.'s Spruce No. 1 mine. Judge Haden's order prevents the company from taking the tops off of the state's mountains and dumping them in the valleys and streams below.
"This is an extraordinarily important victory," said TLPJ Environmental Enforcement Attorney Jim Hecker, co-counsel in the case. "It demonstrates that the current permitting process for mountaintop removal mines is deeply flawed, violates the law, and needs wholesale reform to prevent widespread environmental destruction."
TLPJ and MSJ charged that the West Virginia Department of Environmental Protection (DEP) violated federal strip mining laws by failing to ensure that mountaintop removal mining permits meet minimum federal requirements. The court agreed with this claim and held that DEP had "violated or ignored" its mandatory duty to ensure that Hobet will restore the mine area to its approximate original contour (AOC). This requirement is the heart of the federal Surface Mining Act. It is intended to prevent large changes in topography when massive rock-moving machines dig for coal. The court found that DEP had violated AOC requirements by allowing Hobet to lower the mountains and raise the valleys by hundreds of feet and by applying "a completely subjective analysis [of AOC] in which changes in elevation play a very minor role."
TLPJ and MSJ also charged that the U.S. Army Corps of Engineers violated the National Environmental Policy Act (NEPA) by illegally segmenting their environmental review of the proposed Hobet mine, artificially dividing it into two separate phases. The court agreed and found that "it seems apparent the operations were split intentionally to allow the commencement of mining operations under a less critical agency review and to delay more detailed scrutiny until after significant work has begun."
The court also found that TLPJ and MSJ had raised serious legal questions on several of their other claims. In doing so, the court severely criticized DEP's witnesses and permit procedures. The court stated that DEP's team leader on the Hobet permit review team uncritically accepted the company's statements in its permit application, failed to make required findings before granting variances from statutory requirements, and gave court testimony that was "patently unreliable." The judge also found that DEP staff "blindly relied" on findings by other agencies and failed to exercise independent judgment.
The court found that plaintiffs James and Sibby Weekley and the environment would be irreparably harmed if an injunction were not granted until the trial is completed. Hobet had planned to fill over one and a half miles of Pigeonroost Branch with excavated rock. This stream flows through the Weekleys' property downstream from the proposed valley fill. The judge described this stream as a "keystone community" which supported the surrounding ecosystem and the forest community. If the mine went forward, the forest canopy in the Hollow would be leveled, the aquatic life would be destroyed, and forest wildlife would be driven away. Furthermore, the entire topography would change. In a helicopter fly-over of other mountaintop removal mines, the judge observed this destruction first-hand. He described how the mined sites looked from the air:
"On February 26, the ground was covered with light snow, and mined sites were visible from miles away. The sites stood out among the natural wooded ridges as huge white plateaus, and the valley fills appeared as massive, artificially landscaped stair steps. Some mine sites were twenty years old, yet tree growth was stunted or non-existent. Compared to the thick hardwoods of surrounding undisturbed hills, the mine sites appeared stark and barren and enormously different from the original topography."
The suit, Bragg v. Robertson, was filed in U.S. District Court in Charleston, West Virginia in July 1998 on behalf of 10 West Virginia citizens and the West Virginia Highlands Conservancy. Mountaintop removal mining is an increasingly common coal industry practice. It uses enormous machinery to cut off entire mountaintops 600 feet or more--and reach the valuable low-sulfur coal seams underneath. The huge volumes of rock and earth removed from these mountaintops are then dumped into nearby streams in waste piles called valley fills. The largest valley fills can each bury more than a mile of free-flowing streams under hundreds of feet of rock.
Plaintiffs in the case are being represented by Jim Hecker of TLPJ, Joseph
Lovett of MSJ in Charleston, and Patrick C. McGinley and Suzanne M. Weise,
both of Morgantown, West Virginia.