By John McFerrin

The West Virginia Highlands Conservancy has joined with the Center for Biological Diversity, Sierra Club, and the Ohio Valley Environmental Coalition to sue the federal Office of Surface Mining (OSM) and the United States Fish and Wildlife Service for failing to protect endangered species from coal mining.  The groups contend that the agencies are in violation of the Endangered Species Act.

Background

Congress enacted the Endangered Species Act in 1973 to provide for the conservation of endangered and threatened fish, wildlife, plants and their natural habitats   Under the Act, agencies are required to insure that any action “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined … to be critical.”

The “actions” which the agencies have to make sure do not threatened or endangered species include permitting of, in this case, coal mines.  When the agencies make decisions on, in this case, coal mining permits, it must meet its obligations under the Endangered Species Act.

            The law assumes that most agencies, including the Office of Surface Mining, don’t know enough about protecting endangered species to do it adequately.  When there are endangered or threatened species which could be affected by its decision, it is required to ask the Fish and Wildlife Service what to do.  The jargon for this is that it must do a “consultation” which will lead to the Fish and Wildlife Service issuing a “Biological Opinion.”

What happened here

            In 1995, the Office of Surface Mining initiated a formal “consultation” with the Fish and Wildlife Service about the impact of surface mining on endangered species.  The result was that, in 1996, the Fish and Wildlife Service issued a Biological Opinion, setting out what the Office of Surface Mining should do to protect endangered species which might be threatened by mining.

            In the Biological Opinion the Fish and Wildlife Service responded to the question of what the Office of Surface Mining should do to protect endangered species with a document that could be summarized as “not much.”  It said that the Office of Surface Mining just had to make sure that its permitting required that companies follow the Surface Mining Coal and Reclamation Act requirements and that would be sufficient to protect endangered species.

            As time passed, it became clear that the 1996 Biological Opinion was not enough.  The Fish and Wildlife Service, the Plaintiffs, and everybody else now agrees that it is inadequate.  Even if permitting agencies and companies do everything it requires, it still will not prevent jeopardy to listed species or adverse modification of critical habitat.  In addition, since the 1996 Biological Opinion there have been two new species—the Big Sandy crayfish and the Guyandotte River crayfish—listed as endangered.  Since they had not yet been listed, the 1996 Biological Opinion could not have accounted for them.   

            In 2017, the Office of Surface Mining asked the Fish and Wildlife Service for another opinion.  It sought to find out what it should be doing to protect endangered species.

            Then everything stopped.  Permitting of mining operations went on, of course, but the Fish and Wildlife Service did not do another Biological Opinion.  Instead, the Office of Surface Mining and the West Virginia Department of Environmental Protection continued to rely upon and follow the 1996 Biological Opinion, the one everybody agrees is inadequate to protect endangered species.

            The goal of this litigation is to make the Office of Surface Mining and the West Virginia Department of Environmental Protection stop relying upon the 1996 Biological Opinion.  The litigation also seeks to require the Fish and Wildlife Service to do a new Biological Opinion, in response to the 2017 request and updated to adequately protect all endangered species.  These are, of course, interim steps on the road to the overall goal of protecting endangered species.

            Lurking not so far in the background of this controversy is the role of political influence.  Although the entire story has some twists and turns, the short version is that in 2017 federal agencies became more enthusiastic about approving mining permits and less enthusiastic about protecting endangered species.  To see some details, see How the West Virginia coal industry changed federal endangered species policy, washingtonpost.com/national/health-science/how-the-west-virginia-coal-industry-changed-federal-endangered-species-policy/2019/05/10/56d28de0-4bf0-11e9-b79a-961983b7e0cd_story.html.  

            This filing is the same one that was discussed in the June, 2019, issue of The Highlands Voice.  That story announced that the plaintiffs believed that the Office of Surface Mining and the Fish and Wildlife Service were failing in their duties to protect endangered species.  It said that if the agencies did not correct their policies the groups would sue.  The agencies didn’t; the groups did.  For more information, see that story.