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Saving Mountain Streams
A hiker admires a West Virginia
stream. Photo from West Virginia Div. of Natural Resources. |
EDITORIAL
Washington Post
Tuesday, May 28, 2002; Page A16
At least for the moment, the Army
Corps of Engineers won't be issuing any new permits allowing coal
companies to bury Appalachian streams under tons of rubble from
mountaintop mining operations. The Bush administration recently
issued rules explicitly allowing such permits, but U.S. District
Judge Charles H. Haden II quickly said no. In a sharply
worded opinion, he ruled that the Environmental Protection
Agency and the Army Corps of Engineers had overstepped their
authority by crafting rules that allowed waterways to be used as
dumps for mining waste. The agencies essentially tried to rewrite
the Clean Water Act through their regulation, the judge held, and
that power belongs only to Congress. The agencies and mining
companies can be expected to appeal, but his ruling was a clear,
firm and welcome reminder
of the law's fundamental requirement to protect the nation's waters.
The new rules were first proposed
under President Clinton after Judge Haden wrote, in
an earlier case, that the Corps was improperly approving permits
for mining operations to fill valleys with the dirt and rocks left
over when they blew the tops off mountains to get at coal deposits.
The Clinton officials backed off after environmental groups
protested, but their successors picked up the proposal. When the
Bush administration issued the rules May 3, officials said they
amounted to simple technical changes that brought regulations into
line with existing practice. The judge wasn't buying that. Past
permit approvals, he wrote, were "contrary to the spirit and
the letter of the Clean Water Act." When earlier court
decisions spotlighted the illegal practices, he said, "The
agencies undertook to change not their behavior, but the rules that
did not support their permit process." This effort, he
declared, "must fail."
The practice of mountaintop mining
has grown exponentially in recent years as new technology has made
it possible for companies to use this approach to extract
cleaner-burning low-sulfur coal at prices competitive with producers
in the West and overseas. Coal companies argue that they have no
safe alternative for disposing of rock and dirt among the steep
Appalachian hillsides, and they say thousands of jobs will be lost
if future permits are blocked. Judge Haden noted that the federal
agencies are under immense political and economic pressure to make
sure mountaintop mining can continue. But he also found that only
Congress has the authority to decide whether that pressure warrants
a change in the law that protects the nation's waters. He was right
to slam the door on this rule.
© 2002
The Washington Post Company
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