Citizen’s Arrest

By Josh Mahan

Mountaintop removal coal mining was dealt a serious blow on Friday, March 23 when a West Virginia district court ruled that the Army Corps of Engineers had lawlessly been issuing mining permits, ignoring the Clean Water Act and the National Environmental Policy Act.

The court ruled that the Army Corps has been violating the CWA and NEPA for five years by permitting coal removal projects that blasted tops off of mountains placing the debris in nearby valleys. This debris is known as fill. These fill projects often bury entire headwaters of waterways.

The court now says that the Corp’s fill policy must be revised.

Regulators in four Appalachian states: West Virginia, Virginia, Kentucky and Tennessee have approved nearly 6,000 valley fills that will bury 75,000 acres of streams.

"We applaud the ruling in federal court stating that the U.S. Army Corps of Engineers violated the law by issuing mountaintop removal mining permits that allowed vital headwater streams to be permanently buried,” said Earthjustice attorney Steve Roady.

"The federal government has been illegally issuing such permits. Doing so has led to widespread and irreversible devastation to the streams, mountains and lands across Appalachia. The Judge has made it clear that the Corps must now comply with the Clean Water Act and stop issuing illegal permits.”

Mountaintop removal and valley-fill ramped up in 2002 when the wording of the Clean Water Act was tweaked. With this new wording the coal industry got busy blasting the tops off coal-bearing mountains and dumping the dirt into nearby valleys making a sterile plateau out of the Appalachians and its rich biological diversity.

Extractive industries like Massey Coal and their associated governmental regulatory agencies like the Army Corps have once again proven that they know how to tie up environmental issues in court. Here they have scalped the nation’s oldest mountain range and dumped the debris into drinking supplies for five years illegally, stringing the issue along in court while irreversibly destroying mountain after mountain; stream after stream.

Massey and the Corps have made a complete ruin of Appalachia. The duo has leveled hardwood forests, buried water sources, and spewed cancer-causing coal dust into homes. All for a couple lousy bucks. Now they’re busted of this blatant ill-will and the West Virginia’s district court tells them to reconsider and play by the rules.

What a slap on the wrist! These guys should be put on a prison crew restoring the Appalachian mountains for the rest of their lives. Twelve hours of hard labor every day -- on a vegan diet.

In court talk it sounds like this.  You can see the ruling here.

“The court finds that the Corps failed to comply with the CWA and NEPA when it issued the permits. The CWA permit cannot be issued unless the Corps complies with the 404(b)(1) guidelines and with NEPA. The Corps did not adequately address certain issues as to the impacts of the mining activity on the environment. [We are] remanding the permits to the Corps for reconsideration in light of this memorandum.”

Is this first grade? A permit cannot be issued unless it’s lawful. They need the court to tell them that. These people are supposed to be the best and brightest.

There is a page on the Army Corps website entitled Qs and As On The “Fill” Rule.

The first Q is: Are the Corps and EPA proceeding with a rule change that would allow new dumping of mining wastes in the Nation’s waters?

The A: The rule does not change current practice with regard to the regulation of materials placed in the Nation’s waters, including those generated by mining – if it wasn’t allowed before, it won’t be allowed now. No discharge could take place without a permit that meets Clean Water Act Standards. The rule itself does not authorize any discharges.

The coal companies will one day be crippled and bankrupt when they have to pay for the wrong they’ve caused. But that won’t be enough. No amount of money can change what has been destroyed in its pursuit.

For more information on mountaintop removal go to appalachianvoices.org.