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Ten years ago today, U.S. District Judge Charles H. Haden II issued a landmark ruling on mountaintop removal coal mining.
In short, Judge Haden declared that a mining “buffer zone” rule prohibited coal operators from burying all but the smallest streams with waste rock and dirt from strip mines. You can go back and read his ruling here.
A couple of passages from his 49-page opinion and order still stick in my head today:
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 were 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 quantity of the stream becomes zero. Because there is no stream, there is no water quality.
… The court believes it preferable to attempt to defuse invective and diminish irrational fears so that reasoned decisions can be made with all deliberate speed, but with distractions minimized.
Seems like coal industry officials and some of our politicians (especially Gov. Joe Manchin) might want to re-read that, given the events and the rhetoric of the last week or so.
And revisiting Judge Haden’s ruling — and all that has come after it in the last decade — might be worth it today. The very issue Haden took on — how the stream buffer zone rule applies to mountaintop removal — is still not resolved. More importantly, elected officials and regulators in Appalachia have dodged making real and difficult decisions about this mining practice for years, pushing all sides of the issue much closer to not just unpleasant shouting matches, but violent altercations.
Judge Haden (in the green hat) looks at mining plans with engineer John Morgan and environmentalist Cindy Rank during a court tour of Arch Coal Inc.’s Dal-Tex Mine in 1999.
With that in mind, let’s start with another important part of Haden’s Oct. 20, 1999, decision that is worth revisiting. It’s at the end, under the unusual heading, “Observation.”
Judge Haden noted that the state Department of Environmental Protection and the coal industry had complained that his ruling “would not only end mountaintop mining but virtually all types of mining by elminating valley fills.” The judge noted that the federal Office of Surface Mining Reclamation and Enforcement had considered that very question when it wrote the buffer zone rule in 1979. Some commenters on the proposed rule wanted the buffer zone protections to apply only to perennial streams, but OSMRE responded:
This would reduce operator cost and increase coal production from deposits underlying perennial streams. The Office believes that this alternative is illegal; however, because there are significant fish and wildlife resources in streams other than perennial streams that need protection …
So after 10 years, we’re all back where we started … yelling at each other, with no end to the battle in sight. You have to wonder what would have happened if West Virginia political leaders had stood up to Bush’s efforts to reverse the reforms that Bragg case promised … or what if, in their zeal to ensure mountaintop removal isn’t banned, West Virginia leaders came up with a real plan to limit its impacts on coalfield communities and the environment?