we went back to the same old system and the same old people who’d been failing to regulate for the twenty-some years before. Since 1981 there hasn’t been any true enforcement in the field, on the ground, at mine sites. All the [MTR] mining operations in West Virginia are illegal. They’re operating contrary to the federal law. Not one is legal.”
SMCRA “was supposed to be a solution,” Jack adds, “but instead it became the vehicle for the industry to legitimize what it was doing. And they’ve done now, on a massive scale, what the law was intended to prevent, the dumping of spoil onto mountainsides in steep-slope areas.”
Under SMCRA, valley fills were supposed to be small and of limited use. “The justification [for allowing them at all] was they needed a place, for their first few cuts onto the mountainside, to put the overburden material. That’s [all] the valley fill was supposed to be, and everything else would be returned to ‘approximate original contour.’
“When they got into mountaintop mining where they took off the top 400 or 500 feet of the mountain, they [decided that they] needed larger valley fills. So they created a rule allowing something called a durable-rock fill. And they got a prostitute engineer named Arthur Casagrande (he was from Harvard, a geotechnical engineer) to write the justification for durable-rock fills. Unfortunately, some people in the Carter administration fell for it.
“So they wrote into the rules [by which SMCRA is administered] something that allowed them to do it. All through the Reagan-Bush years the MTR operations proliferated. Rules became weaker and weaker. All through the ’80s the sizes of the [valley] fills grew, the sizes of the operations grew, and no one checked them. Nobody had the courage or the will or the knowledge, really, to check them. Even through the Clinton administration, in the ’90s, the fills and mountaintop removal operations proliferated.
“The valley fills in this region are the largest earth structures in the country now,” Jack says. “They are sometimes 500 or 600 million cubic yards of material—in one fill. Some are as long as six miles long—one fill.”
By the mid-1990s, “citizens had just had enough. They were literally being run off their land by these operations. At Blair Mountain, the site of the famous labor struggle, a man named James Weekley was going to have his hollow filled in by a huge operation operated by Arch [coal company]. And Mr. Weekley came to Charleston [West Virginia] and hired a lawyer named Joe Lovett.” In August 1997 Joe Lovett, just starting out as a lawyer, met Jim Weekley, who gave Lovett his first tour of MTR and persuaded him to try to stop the permitting of a huge MTR operation slated for the hollow where Jim and his family had lived for more than two centuries. Joe started to research mining law and discovered a whole host of ways in which MTR violates provisions of federal laws still enforced by federal agencies. (Lovett was aiming to bring this case to federal court, not West Virginia state court, where he knew he was likely to lose.) Presiding over these violations is the Army Corps of Engineers, which, under the Clean Water Act (1972), has responsibility for determining how much environmental damage will be caused by activities that fill in streams, and granting or denying permits for such activities accordingly.
For example, Section 404 of that act specifies that “fill material” placed in waterways must be chosen to avoid “adverse effect” and achieve some desirable purpose, such as making it possible to build on or farm a patch of wetland. Calling coal waste “fill” doesn’t make it fit Section 404’s definition, nor is simply finding somewhere convenient to put that waste a permissible purpose. Nonetheless, the Corps has routinely issued permits allowing the filling in of streams with waste from MTR operations, contrary to both the letter and the spirit of the Clean Water Act—and contrary to the way land users other than coal companies are treated. (Farmers and construction companies, for example, are not allowed to fill in streams just because they need somewhere convenient to put waste material.)
In addition, the National Environmental Policy Act, which passed in 1969, requires that federal agencies study a project’s likely effects thoroughly and compile an environmental impact statement (EIS) based on that study before approving any project that could significantly harm waterways or their environment. The Corps had never required an EIS during the permitting process for any MTR operation.
Furthermore, the Corps had routinely been violating several provisions of SMCRA for which it, rather than individual states, retained responsibility. SMCRA requires MTR sites to be restored after mining to “approximate original contour”—that is, a mining company that blows up a mountain is supposed to pile the rubble back up into something approximating that mountain’s original size and shape. SMCRA also bans mining within 100 feet of a stream (known in legalese as the “stream buffer zone”) without careful study verifying that that stream would not be harmed by the proposed mining activity. The Corps routinely granted variances that let mining companies off the hook for these provisions.
In short, Joe Lovett discovered plenty of grounds for suing the Corps for failing to enforce laws governing mountaintop removal. He lined up several more plaintiffs to join Jim Weekley, secured the legal and financial help of the Washington, D.C.-based organization Trial Lawyers for Public Justice, and in early 1998 filed a letter of intent to sue both the Army Corps of Engineers and the West Virginia Department of Environmental Protection. The resulting case, Bragg v. Robertson, led to a settlement in December 1998 that compelled the federal government to complete a two-year study leading to an EIS on the cumulative effects of MTR on the entire multistate coalfield region of Appalachia. Meanwhile, the settlement also forbid the Corps to grant any “Nationwide 21” permits for new strip mines that would have valley fills covering more than 250 acres. (Under the Nationwide 21 process, the Corps grants permits for valley fills without public notice and with no EIS on the presumption that they will cause “minimal adverse” impact.)
The settlement deal did not, however, block the proposed MTR operation threatening Jim Weekley’s hollow. In January 1999, Joe Lovett filed for a restraining order with federal Judge Charles H. Haden II, who put the mining on hold until Lovett and Weekley could bring the case to trial. Settlement deals and other legal maneuvering before the scheduled trial date led to a block on moving forward with the proposed mining as well as an agreement that the Corps and the DEP would tighten up most aspects of enforcement of mining regulations, specifically including the “approximate original contour” requirement. (You who are reading this should not at this point become hopeful. Settlement notwithstanding, enforcement remained just about nonexistent.)
One issue that was not resolved by the settlement was enforcement of the stream-buffer-zone rule. Coal-industry lawyers refused to compromise on this, so Joe Lovett asked Judge Haden to compel the DEP to enforce it. On Oct. 20, 1999, Haden ruled not only that the buffer-zone rule must be enforced—but also that MTR valley fills were all, by definition, violations of that rule. The judge forbid the DEP to allow any mine permits that would result in mine waste being dumped in permanent or seasonal streams anywhere in West Virginia.
For those opposed to MTR this was a terrifically hopeful ruling. That hope didn’t last long, though. Judge Haden soon agreed to suspend his ruling while state and coal-industry lawyers appealed it to the federal 4th Circuit Court of Appeals. On April 24, 2001, that court overturned Haden’s ruling on the grounds that the state DEP must be sued in a state court, not the federal court system. Pursuing this in West Virginia’s state court system, where judges must regularly stand for reelection and are highly vulnerable to coal-industry pressure, would likely meet with failure. Joe Lovett instead worked around the jurisdictional problem by filing suit against the Corps, a federal agency, in Judge Haden’s federal court, for the Corps’ own failure to enforce the stream-buffer-zone rule. On May 8, 2002, Judge Haden ruled in Lovett’s favor. In December 2002, the 4th Circuit struck down Haden’s ruling as “overbroad.”
Meanwhile, following George W. Bush’s inauguration as president in early 2001, when he replaced Democrat Bill Clinton, incoming Republican appointees set about tailoring mining rules
