We reached this point through the series of decisions by the Division of Environmental Protection to ignore more and more of the law.

When the state and federal laws regulating mining were enacted in the late 1970's, surface mines were small. Mined areas were to be returned to their "approximate original contour." Although mountaintop removal was contemplated in the original law, it was to be a narrow exception. This narrow exception was only available when the company had detailed and specific plans for an industrial, commercial, residential, agricultural, or public use.

Companies were supposed to avoid mining near streams. They were supposed to do what the law called "contemporaneous reclamation." This meant that as the mining progressed the land was constantly being reclaimed so that there would only be a very small part that is disturbed at any one time.

In the debate leading to the strip mining laws that passed in the late 1970's, people had differing opinions on the wisdom of those laws. Some thought they were a big mistake because they made strip mining a legitimate practice, a practice which many thought should have been abolished. Others such as the coal industry thought the laws went too far.

Regardless of what the different sides in that debate thought, Congress reached the compromise that was the Surface Mining Control and Reclamation Act of 1977. The debate was over, the law was the law, and everybody had to live with it.

Then the mining industry changed. Instead of contour mining going around the mountain and reclaiming as it went, the industry began taking whole mountains. To do this, they had to ignore the law.

To accommodate this new technology, the Division of Environmental Protection had to abandon the idea of "approximate original contour." Instead of any definition based in either common sense or the law, it redefined "approximate original contour" as anything that the coal industry said was approximate original contour. If a company knocked three hundred feet from the top of the mountain, that was "approximate original contour" to DEP’s satisfaction.

The Division of Environmental Protection could have avoided having to torture the word "approximate" by admitting that these big mines did not restore the land to the "approximate original contour." Had it done that, then it would have had to require that companies have the detailed and specific plans for an industrial, commercial, residential, agricultural, or public use that the law requires when land is not restored to the approximate original contour. Since following this law would be too expensive for the companies that DEP serves, it could not do this. It had to redefine "approximate" so broadly that the term no longer means anything.

The law requires contemporaneous reclamation. With the old fashioned contour mines, this meant that companies could mine in one part of the permit and then move on to the adjacent part. The rock and dirt that covered the coal in the second part could be put back in the previous part and reseeded immediately. The result was that there was never a huge area disturbed at any one time.

With today’s mountain top removal, that is not possible. Companies start at the top of the mountain and take off successive layers of rock and coal. They can’t do contemporaneous reclamation. The DEP just had to ignore that part of the law.

The law requires that there be no degradation of streams. When a company takes the top off a mountain, it has to put it somewhere. The only place to put it is in the adjacent valley, a valley which almost always contains a stream. If mountaintop removal mining were going to continue, the DEP would just have to ignore the anti-degradation part of the law.

...the judge’s decision appears bold and dramatic. It is telling a big coal company that it cannot do exactly what it wants to do. For West Virginia, that’s dramatic.

The law requires that there be no mining within one hundred feet of a stream. To build the big fills that are part of mountaintop removal mining means filling streams. The law does allow an exception to this buffer zone around streams. If the DEP determines that mining closer to streams than one hundred feet will not damage the stream then it may allow such mining. According to the testimony of the DEP permit reviewer in the federal court case, DEP had received 8,000 requests for this variance. DEP had granted all 8,000. This includes the streams that are filled by the mining. How it was possible to fill a stream without damaging it was not explained.

The mining companies who plan these huge mines do so on the assumption that DEP will continue to ignore any parts of the law which the permit applicant finds inconvenient. Up until now, that has been a safe assumption.

Now the federal judge has decided that the law has to mean something. We can’t just go ahead and allow the DEP to ignore more and more parts of the law. He has taken the entirely sensible position that the law is the law and if mining is to continue it will have to be done in a way that complies with the law.

It is hard to have much sympathy for the companies. Although they made a huge investment, they did so on the assumption that the DEP would continue to ignore parts of the law and that nobody would notice. While DEP’s past performance indicates that this was a safe assumption, it can hardly be seen as a sensible basis for investing.

The only ones who deserve any sympathy are the miners. They are not the ones who designed the mines in a way that assumed that the law would be ignored. They just mined according to their employers’ direction. Now they are suffering as a result of decisions by their employers over which they had no control.

At first glance, the judge’s decision appears bold and dramatic. It is telling a big coal company that it cannot do exactly what it wants to do. For West Virginia, that’s dramatic.

As bold and dramatic as it seems, it is really no more than a victory for the rule of law. We have laws regulating strip mining and controlling water pollution. They have to mean something. We can’t just have an industry and a state agency who ignore the ones which are inconvenient.

It is unfortunate that the industry and the agency did not simply follow the law all along. Had they not wandered so far beyond what the law allows then being forced to follow the law would not seem like such a dramatic step. Had they followed the law all along, the miners would not have planned their economic future around an industry built on illegal practices. We could have avoided the hardship to workers which results when their employers, who have built their plans on the assumption that the law will be ignored, are required to follow the law.

It is true that stopping or delaying the mining at Blair will cause hardship to the miners. This hardship is the direct result of the decisions by Arch Coal to ignore legal requirements and decisions by the DEP to cooperate. While it is unfortunate that the miners are put in this position, the decisions by Arch Coal and DEP gave the judge no choice.