Maybe West Virginians Really Aren't Happy With King Coal After All

I’ve been blogging about my apparent dismay that there doesn’t seem to be that much of a sense of outrage in West Virginia when those folks have been denied basic drinking water for weeks on end. Well, this recent poll by the Sierra Club may indicate that, though they are not carrying signs and marching down the street, West Virginians are not happy with the situation in their state.

            Across party lines in this poll of 504 West Virginia voters a great majority favor more regulation of the coal industry, with an overwhelming 68 percent, including 57 percent of Republican respondents, saying that greater regulation would have prevented last month’s toxic spill in the Elk River that poisoned the drinking water for 300,000 West Virginia residents. Another 65 percent of respondents thought that the coal industry bore “some” or “a lot” of responsibility for air and water pollution in their state. And 61 percent believe that coal companies have too much influence in their state’s politics.

            These people are voters. Let’s hope that their beliefs and convictions accompany them to the polls in the next election.

When the river looks like this, maybe it's time to call in the regulators.

This Week a Mixed Bag of Court Rulings For Mountaintop Removal

UPDATE BELOW

As far as the court rulings go, it’s a mixed bag for the mountains and the people of Appalachia this week. Some good news, some not so good news.

            First the bad news. In Kentucky a judge ruled against the Sierra Club and other environmental organizations who had brought suit to block a permit for a valley fill that the Army Corps of Engineers had granted for a mountaintop removal coal mining operation in the eastern part of the state.

            When folks challenge the legality of these permits, they usually concentrate on the environmental harm that the mountaintop mining operation will bring to the hills, valleys, and streams of Appalachia, but in this case, the first to do so, the environmental groups said that the Corps had not considered the negative health effects that the valley fill would have on local residents.

            The judge, Thomas B. Russell, ruled in favor of the coal company, Leeco Coal, finding that the Corps did “not act unreasonably” and “adequately analyzed the issues” in issuing the permit. I’m uncertain if judge Russell considered the growing evidence that living around mountaintop strip mining is hazardous to your health. Had he done so, he probably would have ruled otherwise.

            In another courtroom, this one in West Virginia, a judge ruled that a coal industry friendly law that was recently passed by the coal industry friendly legislature of West Virginia did not protect coal companies from lawsuits brought against the mining companies because of the pollution from their mines.

Coal River Mountain Watch had brought suit against Alpha Natural Resources, saying that discharges from the coal company’s Brushy Fork coal slurry impoundment bring about excessive selenium levels downstream, in violation of environmental regulation.

 

The Brushy Fork coal slurry impoundment. So big it would dwarf the Eiffel Tower

Last year’s legislation allows coal companies to declare that they are in compliance with West Virginia water pollution standards if they meet certain discharge limits for chemicals specified in their permits. The water pollution permit for Brushy Fork does not specifically limit selenium discharges, despite West Virginia’s separate water quality standard.

            Judge Robert C. Chambers, in his 36-page ruling, said that this shielding law does not provide Alpha Natural Resources protection from enforcement from existing state and federal laws that allow citizens to bring suit against polluting companies.

           There you have it. One victory, one defeat for the mountains and people of Appalachia.

UPDATE: 9/4/13 There is some hope in the Leeco case in Kentucky. On appeal of its case to a higher court, a District Court issued an order  for Leeco to cease its operation of a mountaintop coal mine while the plaintiffs, Kentuckians For the Commonwealth, the Sierra Club, and Earthjustice, appeal their case to the Sixth Circuit Court.

Sierra Club and Other Organizations Sue Fola Coal Over Mountaintop Mining Runoff

Mountaintop Mining Lawsuit - West Virginia's Eyewitness News

Given how destructive mountaintop removal is, it’s surprising that there aren’t more lawsuits like this. The Sierra Club, along with other organizations, is suing the Fola Coal over mine runoff pollution from a mountaintop mining operation that is about 20 miles east of West Virginia’s capitol, Charleston.
            The runoff from the mine flows to the Leatherwood Creek. About 60 percent of the Leatherwood Creek’s watershed is permitted for mining. The Sierra Club was successful last year in a similar lawsuit against Fola Coal. Right now there are four other lawsuits concerning eight impaired streams. The coal companies involved in these suits are Alex Energy, Elk Run Coal, and Fola Coal.

A creek showing the characteristic yellow staining of acid mine runoff

Environmentalists Sue Landowners Over Pollution From Closed Coal Mines

The damage to people, communities, and the environment have always long outlasted the life cycle of a surface mine. What I recall from growing up in West Virginia were dozens of scarred landscapes from mines that had been abandoned ten or even twenty years earlier. Waterways suffer long after a mine closes. As I wrote in a previous blog, as a schoolchild I remember passing over a very polluted Simpson Creek. The acid mine drainage that stained the rocks and sand in the creek a rusty orange and killed all the fish was from mines that had been closed years before.

            Now, in a move that is intended to address this mining legacy, three environmental groups are suing the Pocahontas Land Corporation and Hernshaw Partners LLC over alleged violations of the Clean Water Act in a U.S. District Court in Huntington, West Virginia. The environmental groups—The Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, and the Sierra Club— say in their lawsuit that pollution still flows from two former mines in Mingo County that are owned by the companies, even though the mines were “reclaimed.” The reclamation of these mines entailed cleaning them up and planting them with vegetation. The environmental groups say that state and federal regulators are not working to end the pollution, so the landowners should be held responsible. The lawsuit demands monitoring and sampling, a restoration program, and a judge to fine the defendants $37,500 per day for each violation.

            When they wrote the Surface Mining Control and Reclamation Act in the late seventies, it was supposed to mitigate the damage to the environment that I grew up with. That never really happened. The enforcement of SMCRA in the past has been lax to nonexistent.[i] And the West Virginia Department of Environmental Protection (DEP) has in the past been exceptionally negligent in fulfilling its protection of West Virginia and its people. In the late nineties investigative reporter Ken Ward uncovered that the department did not know the number of acres permitted for mountaintop removal. The DEP could not even provide to Ward the number of permits that it has granted for mountaintop mining.[ii] Given the even worse track record of the second Bush administration, I have no reason to hope that things have changed much in the last fifteen years.

            With the failure of the regulatory framework for surface coal mining, this move by environmental groups is an obvious and wise move. Whether it is the coal companies or the landowners, somebody should be responsible for what they are doing to Appalachia and Appalachians.

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[i] Loeb, Penny “Shear Madness,” US News and World Report (August 3 1997)

[ii] Ward, Ken “Flattened,” Charleston Gazette, 9 August 1998

Forward On Climate: Change We Can Believe In On Climate Change?

While I have criticized Barack Obama in this blog for his less than stellar performance on global warming, it is important to remember that he is merely the man in the Oval Office. Congress, the courts, as well as the people of this country also bear the responsibility of moving things forward when it comes to the environment and global warming.

            Of all these actors, it is often the people who prove to be the most important agents and instigators of change. Suffragettes marched and demonstrated, and politicians agreed to enfranchise women with the vote. Without Martin Luther King and the March on Washington in 1963, there may not have been the Civil Rights Act of 1964.

            For this reason I cheer the Forward On Climate Rally planned for the 17^th of this month. Organized by 350.org, the Sierra Club, and the Hip Hop Caucus, the rally promises to gather thousands at the National Mall to urge the President and Congress to pass reasonable climate legislation. The Keystone Pipeline, which President Obama has the authority to authorize or reject, has been set in the crosshairs by the organizers of the rally. The pipeline both physically and symbolically embodies what is most wrong with our energy policy. Relying on the mining of Canadian tar sands, the Keystone oil will lay waste to a huge area of Alberta, as well as contribute an ever-greater amount of CO2 to the environment than more traditional oil drilling does.

            I will, unfortunately, be unable to attend the rally, but I hope that enough concerned citizens are able to make it to DC and let Washington know that we do not want a warmer world. I will make it to the rally being held in Balboa Park in San Diego. If you can't make it to the big rally in Washington, I encourage you to show up at your local rally.

Patriot Coal Announces They Are Ending Mountaintop Removal

This news is a wonderful surprise. Patriot Coal announced today that they are ending their practice of mountaintop removal. The coal mining company said that its decision came as part of their agreement over a water pollution lawsuit with the Ohio Valley Environmental Coalition, the Sierra Club, and the West Virginia Highlands Conservancy.

Patriot Coal is to be applauded. Credit is due as well to the West Virginia Highlands Conservancy and other organizations that have been working with legislators, state agencies, and the courts to ensure that the remaining mountains of Appalachia continue to stand; the waters of those mountains run clean and clear; and the residents of the eastern coalfields can live lives unharmed by the ailments associated with mountaintop removal.

            Mountaintop removal by Patriot Coal is not ending today. The company will be phasing out mountaintop mining production over the next three to four years. But all things considered, the news is still good.

Appalachians: Should They Be Treated Like Americans?

The Sierra Club, along with Kentuckians for the Commonwealth and the Ohio Valley Environmental Coalition, are suing to have the approvals for mountaintop removal mines in Kentucky and West Virginia reversed

            The groups contend that the Army Corps of Engineers did not consider the detrimental effects the mining would have on the health of the local residents. By law health concerns are part of the permitting process.

            There is growing evidence that there is nothing healthy about living near a mountaintop mine. Health investigations have found learning disabilities, kidney stones, tooth loss, diarrhea, rash, and some forms of cancer in individuals living close to Mountaintop mines.[i] Mountaintop removal has also been associated with birth defects of the circulatory, respiratory, central nervous musculoskeletal, gastrointestinal, and urogenital systems.[ii] And people who live around this destructive mining practice also experience extreme psychological stress.[iii]

            Considering that the people of Appalachia are our fellow Americans, how much of a stretch is it to think that they should be safeguarded by the same laws that keep the rest of us safe and healthy?

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[i] Holzman, David C. “Mountaintop Removal Mining.” Environmental Health Perspectives Vol. 119, Issue 11 November 1, 2011 electronic journal

[ii] Ahearn, Melissa M. et at. “The association between mountaintop mining and birth defects among live births in central Appalachia, 1996–2003.” Environmental Research Vol. 111 Issue 6. Aug 2011, p 838-846 electronic journal

[iii] Paige Cordial, Ruth Riding-Malon, and Hilary Lips. Ecopsychology. Vol.4, Issue 3, September 2012, 201-208. electronic journal