By Andrew Young
After filing our challenge in the United States District Court for the District of Columbia on January 10, the Trump appointed judge, Timothy J. Kelly, has done little other than give the government more time to think about its forthcoming response, and let the coal company join the proceedings as defendant-intervenors. On the other side, the Department of Justice attorneys for the Forest Service have also asked to transfer the case to U.S. District Court in West Virginia, apparently a more appropriate venue in the Federal Government’s eyes.
While Judge Kelly weighs the various merits of the Government’s request to transfer the case, South Fork Coal Company filed an unsolicited answer to the complaint denying everything and claiming that compliance with the state Surface Mining Control and Reclamation Act rules (WV DEP) satisfies the independent federal obligations of the U.S. Forest Service under both the National Environmental Policy Act and the Endangered Species Act. If you think that is weird and incorrect, that’s because it is both. Moreover, even if that alternative regulatory universe existed, the coal haul road at issue still does not have a protection plan for the candy darter and, as a result, is not in compliance with the requirements necessary to legally operate under the Surface Mining Control and Reclamation Act. But apparently the agencies involved don’t have the spine or the principal to shut this travesty down until it can comply with the law.
As these officials twiddle their thumbs in ornate buildings, trying to figure out how to avoid the expectations of the American people and their duties under law, South Fork Coal has been busily hammering the candy darter and adversely modifying its critical habitat with numerous water quality violations (including at least one imminent harm cessation order for serious negative environmental impacts), showing a flagrant disregard for environmental laws when there is dirty money to be made. Worse still, the company knows full well that we are onto them, so they are racing to get as much coal to market before we have our day in court. Essentially, it looks like the coal company is trying to moot our case by making a legal remedy impossible. Can’t shut down a coal mine if the coal is already gone. What a strange version of American justice.
No matter the hurdles, we will continue to speak truth to power. We will win this case in any Federal jurisdiction because we have the facts and the law on our side, monied political influences be damned.