By Cindy Rank
On September 28, 2012 seven citizen and environmental groups represented by Appalachian Mountain Advocates and Earthjustice filed papers to appeal the National Mining Association (NMA) court decisions in the U.S. District Court for the District of Columbia.
WV Highlands Conservancy joined Sierra Club, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Kentuckians for the Commonwealth, Southern Appalachia Mountain Stewards and the Statewide Organizing for Community Empowerment in filing as Defendant Intervenors in support of the appeal filed by the Environmental Protection Agency (EPA) on September 27th.
The debate revolves around EPA’s conductivity guidance and the EPA-Corps joint permit review procedure known as the Enhanced Coordinated Process or ECP.
The ECP memorandum was issued in June 2009 and the Guidance was first proposed in April 2010 and later finalized July 1 2011.
Both EPA actions have been challenged from the get-go by the National Mining Association, individual coal companies and none other than the state of West Virginia among others.
The litigation has been written about in previous editions of the Highlands Voice (– most recently John McFerrin’s page 3 article in September 2012). And positions advanced by industry in the litigation have been used as part of the excuse for the outrageously deceptive cries about the imaginary “War on Coal”.
At the heart of this legal challenge is an ECP interagency review process that EPA and the Corps are conducting in partnership, along with a policy guidance issued by EPA Administrator Lisa Jackson in April 2010. The interagency review and policy guidance aim to ensure compliance with the Clean Water Act and to strengthen the role of science in reviewing applications for mountaintop removal coal mining permits. The guidance also provides scientific information to help regulators prevent irreversible damage to Appalachian watersheds at risk from mining.
On July 31, 2012 the district court ruled against the EPA saying that the agency exceeded its authority under the Clean Water Act by providing statements on these issues to its staff via guidance, instead of (1) issuing a federal water quality standard [for conductivity] under section 303 of the Clean Water Act; and (2) issuing a federal rule requiring that a reasonable potential analysis happen before a 402 NPDES water permit can be issued.
We are now asking that the appeals court reverse the district court’s ruling and reaffirm EPA’s authority to issue this guidance and flex its muscle in providing much needed protection for the waters of the nation that have been buried, bruised and otherwise abused by the coal mining method that blasts apart mountains and pollutes streams.
[It should be noted that the July 31st decision did not address or undermine the science on conductivity or harm to water quality, and did not undermine EPA's ability to continue following the basic requirements of the Clean Water Act themselves. The main outcome is that this court decided that EPA needed to issue a formal rule rather than a mere guidance, guidance which we continue to believe is within the authority granted by the Clean Water Act.]
Previous to this latest court decision the same Judge in a January 13, 2011 ruling in related motions in this litigation wrote:
“While it may be true that the challenged EPA actions were “designed to significantly reduce the harmful environmental consequences of Appalachian surface coal mining operations, while ensuring that future mining remains consistent with federal laws.” these environmental interests – the actual environmental impact of surface mining – are not currently before the court.
“It may well be that [EPA's actions] are necessary to protect the environment, especially considering the assertion made by counsel for the defendant intervenors [environmental groups] that the substantive requirements of the Clean Water Act were essentially ignored by the prior Administration, but the Court need not make that assessment now.
“Whether the current or the prior Administration’s actions are in compliance with the APA and the Clean Water Act is an inquiry that can be left for another day.”
As stated in a previous article, when science indicates harm is being done to streams below valley fills throughout the region it is time. no past time, to heed the sage warnings of another judge, Fourth Circuit Judge Wilkinson, who noted in his dissent in a closely divided Fourth Circuit decision involving our earlier litigation about particular individual mountaintop removal mining permits [OVEC v. Aracoma Coal Co., 567 F.3d 130, 133 (4th Cir. 2009) (Wilkinson, J., dissenting from denial of rehearing):
“West Virginia is witnessing in the Appalachian headwaters the long, sad decline that Virginia and Maryland have seen with the Chesapeake Bay. Once the ecologies of streams and rivers and bays and oceans turn, they cannot be easily reclaimed. More often than not, the waterway is simply gone for good.”
In this the 40th year anniversary of the Clean Water Act it’s particularly frustrating to watch industry continue to fight science and clean water protections required by the Act. Originally intended to minimize harm to the environment and in turn prevent harm to people and communities near mining operations, the CWA, and other federal environmental laws that address coal mining, appear to be unable to stop the devastation and prevent further harm to human communities near these operations. … There are now increasing numbers of scientific studies and bundles of anecdotal evidence that not only document significant harm is being done to the streams and environment, but also indicate that those mining operations are also a likely cause of some of our communities’ sickness, disease and other unexplained health impacts.
It is unconscionable that things have come this far.
come this far.