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.

We Got Willie Nelson On Our Side: NRDC Launches Music Saves Mountains

While we are plugged into Pandora or listening to our CDs and downloads it is easy to forget the power of music. For millennia work songs alleviated the drudgery of hammering, milling, and tilling the soil. Union songs increased solidarity and aided the battle for workers' rights. And those of you who are baby boomers remember the power of the protest songs that inspired and helped to bring an end to the Vietnam War.

            Now, tapping into the power of music, Emmylou Harris, Dave Mathews, Sheryl Crow, and several other prominent performers are lending their talents to end mountaintop removal. The Natural Resources Defense Council is sponsoring the effort and calling the campaign “Music Saves Mountains.” I don’t see any information on tours or recordings, but Willie Nelson has lent his rendition of “America the Beautiful” to the video below as part of the campaign.

For those of you who lived through the sixties, you remember the protest songs, but there were also the hits such as Barry Sadler’s “Ballad of the Green Berets” that glorified the war. This time around is no different. Below is “Coal Keeps the Lights On.”

This performer doesn’t mention mountaintop removal, but the paean to coal in his song is unwavering. Nowhere in the lyrics is there any mention of slurry impoundments, acid mine runoff, or the lives shortened from cancers and black lung disease.

            Maybe this all just amounts to a battle of the bands. But I’m pleased that we’ve got Willie and Emmylou on our side.

Fed Court Won't Rehear Spruce Mine Veto on Mountaintop Removal Permit Ruling

Fed court won't rehear Spruce Mine veto ruling  - News - The Charleston Gazette - West Virginia News and Sports -

Back in April the U.S. District Court of Appeals ruled that the EPA could withdraw a previously approved Clean Water Act permit for the Spruce Mine No.1., which would have been an enlargement of an already huge mountaintop removal coal mine and would have made it the largest such mine operation ever in the state of West Virginia.
            Today, the court refused to rehear the case, a setback for the mining operator, Arch Coal, and King Coal in general, but good news for just about everybody else concerned. There is no word, so far, from Arch Coal as to whether or not they will try to take the case to the Supreme Court. I shudder at the thought of this case going before a Roberts lead Court. Roberts worked as a lawyer for coal companies before he got his present gig. I think I know how he would want the Court to rule in this case.

West Virginia Fish Protected Under Endangered Species Act

West Virginia Fish Protected Under Endangered Species Act

This is great news for West Virginia, it’s people, mountains, and streams. The diamond darter, which was once found in the Ohio and several other river and streams in the East, has been declared as endangered by the U.S. Fish and Wildlife Service.
            Folks have thought of the diamond darter as extinct until it was found to be extant in the Elk River in West Virginia. Of course the mining companies petitioned to keep the fish from being listed, but now that the fish is protected, it may help protect its watershed, which makes a large swath across the state of West Virginia, from the most egregious mining practices.

As Though Things Aren't Bad Enough: GOP Budget Cuts For the EPA and More Destruction For Appalachia

As though we don’t have it bad enough already, the GOP in the House of Representatives wants to slash the budget for the EPA and turn Appalachia into even more of a wasteland.

            Under the House Interior and Environment spending bill to come before the House Appropriations subcommittee today, the budget for the Environmental Protection Agency would be slashed by 34 percent from its 2012 level. With this kind of budget slashing, it’s hard to imagine how the agency could adequately keep our air and water clean. The EPA budget for 2012 was $8,449,385,000, a dollar amount that is only three quarters of what it was 20 years ago had the budget kept up with inflation. The 34 percent cut would essentially half the agency’s budget from what it was a generation ago.

            As though the third-world regulation of mining practices in Appalachia aren’t lax enough, the bill has in its crosshairs language in the Clean Water Act that is related to the stream buffer rule and the definition of “fill material” that is allowed in our nation’s waterways. The buffer rule, which restricts the dumping of mining waste to at least 100 feet from streams, and regulation on fill material can be applied to mitigate, at least somewhat, the destruction of mountaintop removal coal mining. Seeing the extent of the destruction from mountaintop removal, I have a hard time seeing how it could be less regulated, but I guess the House GOP has the bigger and bigger mountaintop mines dancing in their heads.

The changes to the Clean Water Act would invalidate a recent victory for the EPA, in which the agency revoked a permit for an expansion of a mountaintop mine that would have destroyed miles of streams. The bill would also block the Interior Department from toughening up environmental regulations on the dumping of waste from mountaintop removal mining.

            There are a lot of other bad things in this bill. Arts funding is cut, and the sulfur content of gasoline would not be reduced, as per the EPA. As part of this package, even though we are not at war, the GOP plans to increase military spending.

Another Dubious Distinction For West Virginia: One of the 15 Most Toxic Places On Earth

In his book, Combating Mountaintop Removal, author Bryan T. McNeal asserts that, though West Virginia is one of the states of the Union, the politics and much of the living conditions are the same as those in underdeveloped and what was once called “third world” countries.

From my perspective, this is an accurate assessment. There is widespread and deep poverty. A few years ago among the gifts that you could buy for folks in underdeveloped parts of the world through Heifer International were textbooks for West Virginia schoolchildren. Typically in the underdeveloped world such as a banana republic, politicians see themselves as merely the servants to dominant industries, a case in point that McNeal documents as business-as-usual for West Virginia, too.

Now another third world distinction can be added to West Virginia. Along with Chernobyl, the pollution choked cities of industrial China, and the waste-filled tributaries of the Ganges, the Appalachians of West Virginia have been declared one of the 15 most toxic places to live by the Mother Nature Network. Plain and simple it is mountaintop removal that places the Mountain State in the same company as the deforested mountains of Haiti and Dzerzhinsk, Russia, where 300,000 tons of chemical waste were improperly dumped from 1930 through 1998. The environmental news website had this to say about West Virginia:

Mountaintop removal mining is one of the world's most environmentally destructive practices, and it is most associated with coal mining in West Virginia's Appalachian Mountains. Whole mountaintops are removed to get to the coal, which increases erosion and runoff thick with pollutants, poisoning streams and rivers throughout the region.

The science behind West Virginia’s inclusion on this dubious list is pretty clear. Even still, as a West Virginian, this is not a list I enjoy being on. 

The Casualties In Coal's War on Us.

Rand Paul is keeping the “war on coal” meme alive. Meanwhile, increased use of coal in northern China is robbing millions of their lives. On average northern Chinese residents lifespan has been shortened by five and a half years, due to breathing the particulate laden air of that region.

            Published Monday in the Proceedings of the National Academy of Sciences, the study focused on deaths during the 1990s that were caused by heart disease, stroke, lung cancer, and respiratory illnesses.  The study compared deaths from these illnesses south of the Huai River with similar data north of the river, where the Chinese government has been providing residents with free coal since the 1950s.

            Despite Rand Paul, who once dismissed concern over mountaintop removal as “missing a few hills here and there,” it seems that our use of coal extracts a heavy price. Men die in coal mining accidents, where they also risk getting black lung disease, which has been increasing in recent years. A geography of increased disease and death encircles mountaintop removal mines, and the heartland of this country is hot and possibly going dry from global warming, caused by our throwing tons of CO2 in the air, most of which comes from coal.

            Maybe somebody should tell Rand Paul that it looks like coal has a war on us.

Hendryx leaving WVU, but research will continue

Hendryx leaving WVU, but research will continue

This just in from Ken Ward's Coal Tattoo blog: Dr. Michael Hendryx is leaving West Virginia University for a new position at Indiana University. Hendryx is presently the Director of the West Virginia Rural Health Research Center and Founding Chair of the Department of Health Policy Management and Leadership in the School of Public Health at WVU. The move, he says, is prompted by his wife getting a great job offer.
          Although mountaintop removal had been a mining practice since at least the eighties, no scientific studies had been performed on its health effects until 2007, when Dr. Hendryx published a study on hospitalization patterns among residents of coal country. A health expert with dozens of other peer reviewed scientific papers published, Hendryx has gone on to produce a number of other studies on the health consequences of large-scale surface mining. The findings of his work are staggering and scary. One study of mountaintop removal published last year found that folks who live close to mountaintop removal mines have cancer rates that are twice that of their fellow Appalachians who do not live close to these mines.
          Hendryx says that his work will continue. Let us hope so.

King Coal Gins Up Animus For Obama and the EPA

Mines have been closing throughout Appalachia, with hundreds of miners laid off. Some of these men have been on the job for years; others have worked decades in the mines. These men are laid off in an area that has been economically depressed since at least the early eighties. Prospects for finding other well-paying work are not good.

            Mine closings also affect the barbers, restaurant owners, waitresses, and just about everybody else who works for a living in a mining community. Paychecks that no longer come in also affect the children.

            Mines close and everybody suffers.

Poverty reigns where they mine coal. Lose your job and the chances of finding other good-paying work are slim.

Miners and residents of coal communities have a right to be upset and angry when their mines close. I just don’t like it when the coal companies spend time and money to channel that anger to advance their agenda.

            Coal companies are spending big bucks to sponsor rallies, and PR campaigns to get the message out that miners have lost their jobs and Appalachians suffer because of Barack Obama, the EPA, and environmentalists. Big Coal and its supporters have created organizations such as Coal Mining Our Future that sponsor rallies and distribute T-shirts with pro coal industry messages. These organizations also encourage Appalachians to contact politicians with pro coal mining memes. Like any other industry, King Coal has always had its lobbyists. But by enlisting the public to contact their Congressional representatives, they have created a coal constituency to support their industry in the state houses and Capitol Hill.

            Apparently, these campaigns are paying off for King Coal.  Public opinion favoring the coal companies and their mining practices has increased in the last six years. In a speech titled “From Villain to Victim: The Coal Industry’s New Image in Appalachian Kentucky,” Al Cross, the director of the Institute for Rural Journalism and Community Issues at the University of Kentucky, said of the coal companies, “[They] are in a defensive mode, and they’re gathering their friends around them. This has created, I think, kind of a siege mentality and a regional solidarity. There used to just be sympathy for miners. Now there is sympathy for an industry.”

            Traditionally, miners viewed their employers with a jaundiced eye. For good reason. They knew that without their union, the coal companies would have them working under extremely hazardous conditions for subsistence wages. So for me, having grown up in West Virginia, it’s a little disorienting to see miners taking the side of the coal companies, but I guess that a well-planned and financed PR campaign can bring over a lot of people to your side.

A scene from Matewan, about the beginnings of the United Mine Workers, when miners trusted water moccasins more than the coal companies

Regulations on power plants aside, coal mines have closed because of increased transportation costs and a great decline in the price of natural gas. Warmer than average winters also mean that people are burning less coal and lessening the demand for the mineral. Are these reasons for the decline in coal mining brought up at the industry sponsored rallies?

            I didn’t think so.

            Burning coal throws more CO2 in the atmosphere than anything else; one of the best strategies to reduce our CO2 emissions would be to phase out its use. I can understand that miners’ discontent, and if we as we as a country make the decision to turn away from coal, we owe the miners and other Appalachians a path for them to move on economically, whether that be through regional economic development, education and job training, or aided migration to other areas of the country that aren’t as economically depressed.

            Whether it be the automobile industry exiting Detroit and leaving that city in an economic vacuum or clothing companies buying garments from unsafe factories in Asia, the track record of corporations caring about their workers is not a good one. I don’t believe that the coal companies really care about the miners holding onto their jobs. The coal industry wants less regulation, and they are successfully channeling the anger of the miners, their families, and their neighbors to achieve that goal. But while they hold rallies and hand out T-shirts, mountains crumble, people get sick and die from polluted waters, and others lose their homes and communities to rising seas.