Coal Tattoo

Ten years after: Haden ruling issues still unresolved

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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.

When coal industry officials and supporters went berserk (then-West Virginia Gov. Cecil Underwood called Haden’s decision “one of the darkest days in the history of our state“), the judge suspended his ruling, saying:

… 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.

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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 … 

dragline1.jpgBased on that, Judge Haden observed:

Thus, coal production and surface mining were considered when the regulations were promulgated. The regulator OSM nevertheless concluded that destruction of streams below natural drainways was illegal. 

… To the extent misapprehension of the buffer zone rule was fostered by the Director or other agencies, the public and the remaining parties have been done a disservice. However, if application of the buffer zone rule, a regulation under federal law, prevents surface coal mining or substantially limits its application to mountaintop removal in the Appalachian coalfields, it is up to Congress and the Legislature, but not this Court, to alter that result.

Of course, Haden’s decision on the buffer zone was thrown out. But the 4th U.S. Circuit Court of Appeals never ruled on the merits of the issue. Instead, it tossed the decision on a complicated point about court jurisdiction.

So the buffer zone controversy went on … and the Bush administration stepped in to try to resolve it in the coal industry’s favor.  OSMRE essentially eliminated the buffer zone protections, putting in their place requirements that coal operators generally try to make valley fills smaller.  Soon after taking office, Interior Secretary Ken Salazar tried to revert to the much stronger and more straight-forward ban on mining activities within 100 feet of streams.  A federal judge blocked that manuever, which Salazar had tried to take without allowing any public comment or hearings.

Reversing the Bush changes to the buffer zone rule was a big part of the Obama administration’s announced plan to take “unprecedented steps” to reduce mountaintop removal’s environmental impacts. But now, the administration isn’t saying what it’s going to do about the buffer zone rule — whether it will try another route to repeal the Bush changes or otherwise seek to again give streams the protections Judge Haden talked about. Key to the uncertainty here is that the Obama administration has declined to say if it wants to apply the buffer zone to the footprint of valley fills or not.

But that’s really a small part of the unfinished business from Judge Haden’s decision and the Bragg v. Robertson mountaintop removal litigation. Recall that part of that litigation was settled, with a promise from the federal government  to conduct a detailed study of mountaintop removal’s impacts on communities and the environment, and to issue new rules to reduce those impacts.

Well, the government conducted that study … it spent years and millions of dollars on it. The conclusions were clear: Mountaintop removal was devastating Appalachian forests, mountains, streams and communities. But what happened?  Coal industry lobbyists who were running the Bush administration’s Interior Department hijacked the study, using it instead to push for things like the weakening of the buffer zone rule, and other measures to “streamline” permit processing for mine operators.

Some reforms did grow out of the Bragg case. West Virginia’s Environmental Secretary, Randy Huffman, outlined some of those improvements — a new AOC formula and flood-prevention rules, for example — in his June testimony to a Senate committee in Washington.  But the buffer zone gutting was not the only move in the opposite direction. The Bush administration also rewrote the Clean Water Act “fill rule” to protect coal and abandoned any effort to come up with rules to specifically limit the size of valley fills.

savethekids.jpg Today, understanding of and opposition to mountaintop removal has spread around the country. Many folks in the national and local environmental movements want an all-out ban on the practice, not the increased regulation that the Obama administration talked about. Some young activists vow to continue peaceful protests until that’s what happens.

West Virginia’s elected officials and political leaders talk a good game about balance, and about wanting the coal industry to continue, but simply be properly regulated.

But when the Bush administration was dismantling efforts to tighten regulation of mountaintop removal, none of the state’s Democratic political leaders spoke out against what was happening. Did they support what Bush was doing, or just hope to stay out of the fray?

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The closest any West Virginia leaders came to taking a stand against Bush’s pro-industry maneuvering was when House Natural Resources Chairman Nick J. Rahall held a committee hearing two years ago to mark the anniversary of the passage of the federal Surface Mining Control and Reclamation Act. But as far as I can tell, that committee hearing resulted in no actions or initiatives to fix the problems outlined by the coalfield citizens who testified.

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?