By Frank Young

HOPE

It’s been 22 years since the Federal Surface Mining Control and Reclamation Act (SMCRA) was enacted. And it’s been 18 years since the U.S. Government’s Interior Department, Office of Surface Mining (OSM), turned over responsibility for enforcement and management of SMCRA to the state of West Virginia.

The coal industry’s 1970's predictions that SMCRA would eliminate the surface mining method of coal extraction have not come about. In fact, the industry and West Virginia Governor Cecil Underwood point to SMCRA as authority for the mining methods now commonly called "mountaintop removal."

But we, and now a federal court judge, recognize that because of a corruption of the concepts of terms like "approximate original contour (AOC)" and "post mining land use" and amounts of "spoil" permitted to be placed off site, that SMCRA has not been the tool for encouragement of responsible mining techniques it could have been.

This week, after several weeks of hearings, U.S. District Judge Charles Haden issued a preliminary injunction against the largest mountaintop removal mine in West Virginia history.

Many of us have asked whether the federal OSM and / or the West Virginia Division of Environmental Protection (WVDEP) would ever properly apply the terms of SMCRA to coal mining in West Virginia.

After more than two decades of waiting, the WestVirginia Highlands Conservancy and several coalfield residents filed suit against several federal and state agencies, asking a federal court to require the agencies to do what the laws say they should do. Although the coal industry was not a direct party to the suit, the federal court soon allowed the industry to make arguments in the case.

The lawsuit’s goal was to modify the permitting process so that certain provisions of applicable laws relating to mining practices can become properly incorporated in the permitting and mining process.

The case comes to trial next fall. For the first time in many years, some of us have hope that some of the most blatant violations of SMCRA, caused by official negligence (partially admitted by OSM, and denied by WVDEP) might get a fair, official review.

Despite the usual doomsday predictions by the coal industry, a fair reassessment of coal mining permits based on SMCRA will not bring coal mining to a halt. The industry is currently running a campaign of indoctrination of its employees and the general public to the notion that compliance with the law will lead to economic collapse. The propaganda is not factual.

The industrial and commercial demand for the coal, the mining laws, the economic and political power of the coal industry and the existing political structures assure coal a continuing seat at the table of economics for years to come.

For the short term, though, the coal industry would do well to reassess its confidence that those provisions of law it finds inconvenient will continue to be ignored by regulators.

The court’s recognition of the legal issues gives us hope.