One of the most interesting things about yesterday’s mountaintop removal ruling — the latest industry win at the 4th U.S. Circuit Court of Appeals — was the reaction to it from Alpha Natural Resources. In an e-mail statement, Alpha spokesman Ted Pile had this to say about the decision:
… We were very confident in our position that the Corps of Engineers and our permitting department had worked tirelessly to develop a permit that complies with the law and thoroughly protects the environment, while allowing the mine to operate. We were pleased today to have our position affirmed by the 4th Circuit in a well-reasoned, unanimous opinion.
It’s rewarding to us to see that the courts have multiple times cast aside the unfounded arguments of a small number of special interest groups who wish to stop coal at all costs. Who wins in this ruling are really the communities of Appalachia that are able to preserve high-paying mining jobs and enjoy the economic benefits that come from a properly run, well regulated business.
There are several things in there that are worth unpacking a little bit, as we try to understand what the 4th Circuit’s ruling about Alpha subsidiary Highland Mining’s Highland Reylas Surface Mine means, especially in the wake of two big losses for the coal industry in mountaintop removal cases in the D.C. Circuit and in the 6th Circuit.
First, there’s the way Alpha characterized the citizen groups — the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, the Sierra Club and Coal River Mountain Watch — as “a small number of special interest groups who wish to stop coal at all costs.” That’s not really too far from the way Massey CEO Don Blankenship would try to minimize and marginalize citizens who are concerned about the impacts of large-scale surface mining on Appalachian forests, streams and communities (see for example here and here).
And here I thought that the Alpha Natural Resources buyout of Massey Energy two years ago was going to bring us a new day in the way coal companies deal with stakeholders … Remember what Alpha-backer Rep. Nick J. Rahall told us about the Alpha-Massey deal:
I think with new ownership now in Southern West Virginia, that we’ll see a reaching out by the companies to try to work with these residents ahead of time, hopefully, in the permitting process, or before the process even starts, to try to work out arrangements with them to ensure that they’re not placed in harm’s way.
If you read Alpha’s 2011 corporate “Sustainability Report,” there’s a great quote in there from CEO Kevin Crutchfield:
We need to be responsive to our communities and stakeholders. Listening is an act of respect.
And the report text itself says:
Our commitment to sustainability stems from our culture of Running Right, Leading Right and Living Right. This culture drives how we operate our business – which includes a commitment to always Running Right that ensures all of our employees make it home safely at the end of every day. It also drives how we approach the people whose lives we touch. Alpha has many stakeholders, and we know our decisions impact them in a variety of ways. To succeed, we need to operate with respect and attention to these stakeholders. We call this Leading Right. And finally, we seek to be the example we want to follow – in every act, every conversation, every moment, both within our company and as members of the communities where we live and work. For us, this is Living Right.
Does trying to minimize and marginalize four of the most active and engaged environmental and citizen groups in the region really constitute “being responsive” to communities and stakeholders? Does it show much respect for people like Cindy Rank, the mining chair of the West Virginia Highlands Conservancy, who has been focused on trying to reduce mining’s impact on coal communities for far longer than there’s been an Alpha Natural Resources? Is that really “running right”?
More importantly, there’s this other part of the Alpha statement about the “unfounded arguments” about mountaintop removal’s impacts, raised by the citizen groups in this case.
Let’s get some things straight about this. First, the growing body of scientific research certainly doesn’t show that concerns about mountaintop removal’s impact on the environment are “unfounded.” The science, for example, shows that mountaintop removal is having pervasive and irreversible impacts on the local environment. The science shows a growing concern about why people who live near mountaintop removal mining face greater risks of serious illnesses, including cancer and birth defects. And one of the most recent peer-reviewed papers outlines all of the broad impacts — beyond just water quality issues — from mountaintop removal.
It’s not surprising that many people are confused about the state of the science regarding mountaintop removal. The media doesn’t always do a very good job explaining this stuff.
Take this week’s piece by The Associated Press, which boiled down mountaintop removal’s impacts to say the practice is “drastically altering the landscape.“
Or take the story that West Virginia Public Broadcasting did last week about the CONSOL Energy permit related to the King Coal Highway project, in which mining supporters were allowed to say “there’s no scientific evidence” to prove that this kind of mining harms water quality. Today, Public Broadcasting’s Ashton Marra had a follow-up story that focused on the argument from West Virginia Department of Environmental Protection officials that mining practices have improved over the last 36 years, since passage of the 1977 surface mining act:
Department of Environmental Protection spokeswoman Kathy Cosco, however, disagreed with the notion that there is no evidence whatsoever.
“There is scientific evidence that shows if it’s not regulated properly there can be long term effects to the environment after mining takes place. That is the whole purpose of the surface mine act. The state is dealing with a lot of results from the abandoned mines that are around the state. So, I can’t agree with him 100 percent blanketly in what he says,” Cosco said.
Cosco said the history of the mining industry in southern West Virginia cannot be overlooked. There were times before regulation when mining was detrimental to the environment and today, environmental groups are still working to reverse the harm.
But Cosco said with the passage of the federal Surface Mining Control and Reclamation Act in 1977, times, and the industry, have changed.
“There’s no doubt that we are doing better. Since that act has passed, there have been improvements to water quality in the state, to air quality. There were times when it was quite common to see black water running through the state streams and today, that’s a quite rare occurrence, in fact it’s more infrequent, and that’s because of the companies being more vigilant about how they’re handling the water,” Cosco said.
“You know, we’re down to counting parts per billion now in terms of pollutants in the water. So, I think you can look back over the past 30 some years and you can see a vast improvement in the environment.”
Unfortunately — as is becoming all too much a part of the Obama EPA’s normal practice — EPA officials refused to give public radio an interview on this subject. But EPA’s previous detailed letters about the potential impacts of the mine in question with the King Coal Highway project are readily available online (see here and here, for example), and public radio could have quoted them. Many of the peer-reviewed scientific papers are also available online, and reporters could certainly interview the scientists about their findings.
But back to the 4th Circuit ruling and Alpha’s comment that it shows concerns about mountaintop removal permits like the Highland Reylas one are “unfounded arguments.”
Let’s go back first to what U.S. District Judge Robert C. Chambers said in his ruling in this matter, because Judge Chambers certainly didn’t say the concerns raised in his courtroom were unfounded. For example, from his August 2012 ruling:
At trial, Plaintiffs presented unrefuted evidence of a correlation between mining, elevated conductivity, decreased WVSCI scores, and the loss of sensitive benthic macroinvertebrates in streams below valley fills. The testimony of Plaintiffs experts was compelling, and the efforts by the Corps and Highland to discredit them were in vain. The Court is thoroughly convinced that large scale surface mining is strongly correlated with elevated levels of conductivity and the loss of sensitive macroinvertebrates downstream of valley fills.
Judge Chambers also noted, regarding coal industry efforts to mitigate the damage from mountaintop removal, that he remains “extremely skeptical about the viability of stream creation on which this and other permits rely heavily”
But, the judge noted previous court decisions — including one in which the 4th Circuit overturned one of his own rulings — that say courts must defer to agencies like the U.S. Army Corps of Engineers as long as those agencies have acted reasonably and not in an arbitrary and capricious manner:
This court must adhere to the guiding principles of deference under Aracoma in ruling on plaintiffs’ challenges to the corps’ decision, despite substantial scientific evidence contrary to that decision.
So what did the 4th Circuit say about this? Well, they certainly didn’t say that concerns about mountaintop removal are “unfounded.” As close as the 4th Circuit got to doing so was this statement from the majority opinion:
… Contrary to the Environmental Coalition’s contention that the Corps failed to take a hard look at conductivity and stream impairment, the record amply shows that the Corps grappled with the issue extensively, rationally finding that (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit and (2) the compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.
But the real basis for the 4th Circuit’s decision was less about whether concerns about mining were “unfounded” and more about whether the corps fairly examined those concerns. The majority opinion was that OVEC lawyers hadn’t proven the corps didn’t do so:
With the inability to demonstrate that the Corps failed to take a “hard look,” the Environmental Coalition’s arguments are reduced to no more than a substantive disagreement with the Corps. But our review is limited, and we may not “use review of an agency’s environmental analysis as a guise for second-guessing substantive decisions committed to the discretion of the agency.”
A concurring opinion filed by Judge J. Harvie Wilkinson is also instructive on this issue:
There is a limit to the extent that courts can direct the CWA process, given the episodic nature of our involvement, the standard of review, and the lack of our own extensive scientific expertise … When an agency is tasked with determining the environmental impact of a project upon an ecological setting that is already the situs of other activity, there is a real danger that the agency’s appraisal may fail to take a wide enough view of the collective impact of all of the environmental effects that the location has experienced over time.
The Corps has been tasked with regulating mineral extraction in West Virginia in a way that respects the extraordinary, but fragile, environmental and natural resources of that state. Here, the record demonstrates a frankness in the agency dialogue that resulted in a greater respect for NEPA’s basic aims. Given the corrective measures ultimately taken, I believe it would be counterproductive to leap upon the earlier EPA and Corps reservations as a reason to reverse. To do so would produce darkness in the process, not light. Of course, the judiciary is not a rubber stamp on agency action, and there are times when contrary evidence will either not support or will actively undercut an agency’s decision. But this is not one of those cases.
At the conclusion of his opinion in this Reylas permit case, Judge Chambers observed:
Miles of West Virginia streams are being buried under valley fills covering hundreds of acres, dramatically altering the landscape and streams throughout southern West Virginia. The EPA and the WVDEP have been at loggerheads in evaluating these impacts and taking action to strike the balance between the State’s economic interests in mining and its obligation to protect West Virginia’s environment.
Lots of political leaders like to use that phrase about “striking a balance” between mining and protecting the environment. But it seems unlikely that such a balance will ever be achieved, as long as the industry and its supporters insist concerns about mining damage are nothing more than “unfounded arguments.”