The battle for Pigeonroost Hollow

James Weekly walked into Joe Lovett’s office at Mountain State Justice, opened up Penny Loeb’s groundbreaking “Shear Madness” article in U.S. News & World Report to a picture of mining encroaching on forested mountains. He pointed to to the bottom of Pigeonroost Hollow. “That’s where I live,” he said.

It was the fall of 1997, and Lovett was about to embark on a case that would end up defining his career, and help galvanize an activist movement against mountaintop removal mining. In the years since, there have been celebrations and setbacks, lulls and flurries of activity. There has not been a definitive victory or a crushing defeat.

But, nearly 14 years later, the permit for the largest mine in West Virginia has yet to be finalized.

It’s hard to explain mountaintop removal mining to those who have never seen it. Mining advocates like to refer to it as large-scale surface mining, mountaintop mining or other sterile euphemisms – otherwise known as “linguistic detoxification.”

But mountaintop removal mining describes the process best, however inadequately. Once-lush mountaintops are stripped bare. Bulldozers tear trees out by their roots. The top of the mountain is then blown into rubble with high-powered explosives and then methodically decapitated by huge machines called draglines that scoop up the “overburden” – the compressed dirt and rock that had been an ancient mountain – to get to multiple coal seams beneath.

Once the coal is removed, mining engineers attempt to put the mountain back together. Regulations call for returning the mountain to its “approximate original contour,” a term that has never been adequately defined, and a requirement that has never been adequately enforced. But, as West Virginia Department of Environmental Protection permit supervisor Larry Alt told Ken Ward Jr. in Ken’s Mining the Mountain series in The Charleston Gazette, “We just can’t stack it as high as God did.” Often, they didn’t even try, leaving the mountains as flat plateaus. That was only supposed to be allowed if coal companies had a post-mining land-use for the land that required it be flattened – another largely unenforced measure.

That means a lot of “spoil” – again, that stuff that used to be a mountain – is left over. This material is dumped into nearby valleys, filling them and burying the streams that ran down them.

The impacts on nearby communities are severe throughout the process. Blasting shakes houses, sometimes cracking foundations, and blankets the area with dust. Rock can fly from the mine site and land in yards or crash through houses. Stripped mountains increased the impact of flooding. And, of course, the natural environment – forests, streams and hillsides – is largely destroyed.

No lawyer had ever challenged the regulation of mountaintop removal mining – governed by the 1977 Surface Mining Control and Reclamation Act, before. Lovett was in largely unexplored legal territory. He filed a notice of intent to sue over the permit for the Spruce No. 1 mine shortly after the 1998 legislative session in West Virginia. In July, that suit – Bragg v. Robertson – was filed on behalf of the West Virginia Highlands Conservancy and 10 coalfield residents, including Weekley and Patricia Bragg, whose name would become synonymous with the case.

In February 1999, U.S. Circuit Judge Charles Haden issued a temporary restraining order preventing Arch Coal from starting work on the mine. He ordered attorneys back into the courtroom first thing the next morning to start a hearing on a preliminary injunction. By that time, attorneys Pat McGinley and Jim Hecker were working with Lovett on the case. The three of them faced off against more than a dozen lawyers representing the coal industry and state and federal regulators. After that lengthy hearing, which included a tour and flyover of mountaintop removal operations, Haden granted the preliminary injunction against the mine.

That injunction was key. “If he had not issued that injunction, they would have started work on the mine the next week,” Lovett said.

At the time, Hecker, a lawyer for the West Virginia Highlands Conservancy, said the injunction “changes the whole tenor of the debate over mountaintop removal.”

“All we have heard all along from the industry and [the state Division of Environmental Protection] is that they are fully in compliance with the law,” Hecker said. “This says that isn’t true – that there are major changes needed in the program and major violations of federal law that are having a major effect on the environment.”

As preparations for the trial proceeded, the U.S. Army Corps of Engineers stunned Arch Coal by withdrawing the permit, saying there was was “virtually no chance” the agency would prevail in court.

Less than two years later, the permit would be back (subscription required).

In the meantime, Judge Haden issued what should have been a landmark ruling in the case banning many valley fills. It would ultimately be overturned on a legal technicality by the 4th Circuit Court of Appeals, but the ruling was an important milestone in the case.

Haden ruled that valley fills in streams that flowed at least six months out of the year violated SMCRA’s “buffer zone rule” – which prohibits most surface-mining activity within 100 feet of perennial or intermittent streams. Incredibly, DEP officials tried to argue that the buffer zone rule only applied to portions of streams not buried by valley fills. Haden obliterated that rationale:

“When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments. The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quality of the stream becomes zero. Because there is no stream, there is no water quality.”

Haden’s ruling ignited a firestorm of protest from the coal industry, the United Mine Workers and West Virginia politicians. Sen. Robert C. Byrd took to the floor of the U.S. Senate to denounce the ruling and worked hard, but unsuccessfully, to overturn it legislatively. Haden’s ruling was never challenged on the merits. It was overturned in the 4th Circuit because a panel of the appeals court found that the state couldn’t be sued in federal court – even for violations of federal law. Then the Bush administration eliminated the buffer zone rule completely. The Obama administration continues to work to restore that.

The Spruce permit continued to work through the system. The Corps completed a draft Environmental Impact Statement for the mine in March 2002, but it would be five more years before the agency would issue a final permit. The EPA continued to express reservations about the environmental impact of the mine.

Lovett, who had gone on to found the Appalachian Mountain Advocates (formerly Appalachian Center for the Economy & the Environment) in 2001, once again went before a federal judge in 2007 to try to stop the mine he first began fighting almost a decade before. As the legal battle progressed, the U.S. Environmental Protection Agency – now under the Obama administration – was taking an even harder look at the environmental impact of the permit.

After threatening to veto the permit for months, the EPA made this announcement:

“On January 13, 2011, after extensive scientific study, a major public hearing in West Virginia and review of more than 50,000 public comments, EPA announced that it will use its authority under the Clean Water Act to halt the proposed disposal of mining waste in streams at the Mingo-Logan Coal Company’s Spruce No. 1 coal mine.”

Again, reaction was vociferous. House Republicans held hearings attacking the EPA. Sen. Joe Manchin said he’d introduce a measure to prohibit such vetoes. The Mingo-Logan Coal Company, the Arch subsidiary seeking the permit, sued the EPA over the veto.

On May 25, 2011, attorneys for Appalmad and Earthjustice filed a motion on behalf of the Sierra Club and three local conservation and social justice groups — West Virginia Highlands Conservancy, Coal River Mountain Watch, and Ohio Valley Environmental Coalition — filed a motion to intervene in support of EPA against the lawsuit brought by the Mingo Logan Coal Company.

Looking back over the history of the Spruce No. 1 mine, Lovett said the litigation helped drive the politics and the activism of those opposed to mountaintop removal mining. Though it’s unclear what will happen next, it does seem clear that the Bragg case did help focus and catalyze the opposition.

Cindy Rank of the West Virginia Highlands Conservancy said the case hasn’t resulted in a clear-cut victory, but it has made things better.

“When we started, the state regulation was just ridiculous,” she said. Regulation of mountaintop removal mining was beyond slipshod. Now approximate original contour standards are somewhat better enforced, leading to smaller valley fills.

The litigation brought attention to the issue. “I have no doubt that not only has it made people more aware of what’s going on, but has activated people nearby.”

Lovett said the Bragg case helped set a legal and scientific foundation that has enabled the challenges to other permits that have followed.

Rank also credited Appalmad with bringing in outside experts to challenge coal company experts and state regulatory agencies. “They brought in a lot of exertise and knowledge that never would have been put out there otherwise,” she said.

That more objective expertise helped community members back their more emotional response to what was happening to their homes.

“It gave the community the words, and the science, to back the emotional rationale,” she said.

Pigeonroost Hollow has been saved, for now. But other hollows are being destroyed.

“Pigeonroost is special, but so is every other hollow,” Rank said. “Connolly Branch used to be full of life. Now it’s just a puddle.”

Saving special places – and the people who call them home – is what the fight over the Spruce mine permit has been about all these years.

That battle is far from over.

 

 

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