Coal Tattoo

Judge overturns EQB ruling on mining pollution

Just in this afternoon (thanks to a tweet from former WVDEP lawyer Joseph Jenkins), a West Virginia state court judge has for the second time overturned the state Environmental Quality Board’s ruling that demanded tougher permit reviews and tightened water quality limits when the state Department of Environmental Protection issues water pollution permits for coal-mining operations.

I’ve posted a copy of the ruling by Kanawha Circuit Judge James Stucky here, and the EQB decision in question is posted here. There’s more background here.

For those who have forgotten, here’s what the case is about:

EQB members ruled in a case in which the Sierra Club challenged DEP’s approval of a water pollution permit for Arch Coal subsidiary Patriot Mining Co.’s New Hill West Mine along Scotts Run near Cassville in Monongalia County.

Sierra Club lawyers argued the DEP wrongly did not perform a “reasonable potential analysis” of the mine’s possible sulfate, total dissolved solids, or TDS, and conductivity pollution. They argued that such studies would have forced DEP to include additional water pollution limits in the permit.

And here’s some more background:

“The board finds that a growing body of science has demonstrated that discharges from surface coal mines in Appalachia are strongly correlated with and cause increased levels of conductivity, sulfate, and TDS in water bodies downstream from mines,” the board ruling said. “The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams.”

In this instance, the board said that DEP “overlooked or discounted information that, had it been considered, would have compelled” the agency to include additional pollution limits to prevent violations of the state’s water quality standards.

Board members ruled that evidence of water quality damage from existing mining in the state’s coalfields was “un-refuted” by witnesses from DEP or the mining company.

Some readers my recall what WVDEP Secretary Randy Huffman previously said about the EQB’s original ruling:

This was the worst ruling I’ve ever seen out of the EQB as far as a lack of respect for the rule of law.

In short, this is what Judge Stucky said:

After a thorough review of the record, it is evident that the EQB accorded no deference to WVDEP’s interpretation of water quality standards. In fact, the EQB orders that the EPA’s narrative guidance be followed, instead of using WVDEP’s Narrative Guidance. This Court finds that to apply EPA’s Narrative Guidance would infringe on the authority afforded to WVDEP. Therefore, the Court concludes that the EQB’s decision was arbitrary and capricious.

One thing that’s interesting about that is that for many years, the law in West Virginia has clearly been that WVDEP is not due any deference in cases before the EQB. At least that’s what the state Supreme Court said in this case from 1997:

Appeals of a final agency decision issued by the director of the division of environmental protection shall be heard de novo by the surface mine board as required by W.Va. Code, 22B-1-7(e) [1994]. The board is not required to afford any deference to the DEP decision but shall act independently on the evidence before it.

 

Earlier this week, a collection of House Democrats in Washington re-introduced legislation aimed at requiring the federal government to more fully examine the growing science that links living near a mountaintop removal mine with increased risks of series illnesses and premature death. We’ve written about this legislation before here and here.

Rep. John Yarmuth, D-Ky. and one of the bill’s lead sponsors, said:

Mountaintop removal coal mining destroys entire ecosystems and contaminates the water supplies in mining communities, making people sick and jeopardizing their safety. This legislation will provide families in these communities the answers they need and the protection they deserve. If it can’t be proven that mountaintop removal mining is safe, we shouldn’t allow it to continue.

Yarmuth’s press release correctly explained:

Evidence is mounting that people living in communities near mountaintop removal coal mining sites are at an elevated risk for a range of major health problems. While there has long been anecdotal evidence to support this conclusion, recent peer-reviewed research has examined the question more systematically and revealed compelling results.

One alert Coal Tattoo reader wondered what Rep. Nick Rahall — whose district is home to more mountaintop removal than any other — made of this renewed legislative effort. Of course, we had a long interview with Rep. Rahall about this a while back (nearly two years ago now) here on this blog.  A couple of key points made at the time by Rep. Rahall:

As the study says, additional investigation is necessary, and if these threats are proven, we need to be informed, we need to do whatever we can to reduce these threats. We ought to know more. We ought to be open to exploring solutions.

That blog post continued:

Fine … so what exactly is Rep. Rahall doing to try to encourage or even require such additional studies and investigations? Remember — most of the mountaintop removal is occurring in his district, his home, the Southern West Virginia coalfields he’s represented in Washington since 1977. Has he contacted any agencies or requested a review by anyone of the findings?

I have not yet, because I’m ascertaining as to which are those relevant agencies, and which could do the best job.

Exactly how are you trying to ascertain that?

Just getting professional opinions, which we’re in the very exploratory stages of doing now, as to who can be the … who knows the issues, who has the background. That’s something I can’t say off the top of my head.

Well, that was back in July 2011. Surely Rep. Rahall has had some time to get some professional opinions and find out what agency should be dealing with this, and take some action, right?

So this week, when the legislation was reintroduced, I asked Rep. Rahall’s office some questions along these lines: Why isn’t Rep. Rahall a co-sponsor of the bill?  Why are members of Congress from outside of the district where most MTR occurs the forces behind this effort to protect the health of area residents? What steps — if any — has Rep. Rahall taken to either evaluate the health impacts of MTR or take action to reduce those impacts?

I’ve mentioned before on this blog that I’ve always found Rep. Rahall very open with the media, and very gracious with his time in answering my questions. But this time, it took repeated emails and phone calls to get even this from spokesman John Noble:

Don’t have any comment for you on this and sorry for the delay in responding.

Do we need to get President Obama off our backs?

One of the tenets of the “War on Coal” campaign is that coal states like West Virginia need desperately to get President Obama, the U.S. Environmental Protection Agency, and other federal regulators off our backs. Is this true?

Well, consider the story we ran in Sunday’s Gazette-Mail, which details a new notice of intent to sue filed with the U.S. Environmental Protection Agency by the Sierra Club, the West Virginia Highlands Conservancy, and the Ohio Valley Environmental Coalition:

National and state citizen groups are threatening to sue the U.S. Environmental Protection Agency for not stepping in to force West Virginia regulators to clean up hundreds of polluted streams.

On Friday, lawyers for the Sierra Club, the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition sent their formal notice of intent to sue to EPA headquarters in Washington.

Technically, the threatened suit focuses on EPA’s failure to act within the required 30 days to approve or reject the state Department of Environmental Protection’s list of polluted streams that need cleaned up.

But the suit brings to light a simmering controversy over DEP not including hundreds of streams on that list, based largely on a coal industry-backed bill passed during last year’s legislative session.

The bill, signed by Gov. Earl Ray Tomblin, ordered DEP to abandon its existing methods of measuring stream health and come up with a new set of rules to define when streams are considered biologically impaired. DEP has yet to write those rules, and agency officials declined to add to last year’s cleanup list hundreds of streams that might otherwise have been included.

“We need someone to call a stream polluted when it is, and if the West Virginia DEP won’t do it, then the EPA must,” said Jim Sconyers of the state Sierra Club chapter.

As explained in a news release from the citizen groups:

The Clean Water Act (section 303(d)) requires states to periodically submit lists of polluted waterways to the EPA, which then has 30 days to review the lists. West Virginia’s most recent list failed to include numerous streams that are known to be highly polluted, mainly from mountaintop removal coal mining. January 22, 2013 marked 30 days since West Virginia submitted the list, and the EPA has not rejected it.

The deficient list of polluted waterways stems from the West Virginia legislature’s recent attempts to change the state’s water quality standards. The state formerly used scientific surveys of aquatic insects to determine which streams are biologically impaired. Now, because of the legislature’s actions, the state claims that it must develop new methods for determining impairment. Rather than use the previous assessment method in preparing the updated list of impaired streams, the state opted to not conduct any assessment at all. Had the state used its previous method, it would have identified an additional 173 streams as impaired. And had the state used the method directed by the EPA, it would have identified 546 streams as impaired.

In the notice letter, citizen group lawyers Joe Lovett and Mike Becher say that WVDEP “was brazen in its refusal to comply,” but that EPA responded with only a request to have a conference call with state officials. Commented Lovett and Becher:

Such a weak response is not permitted by the Clean Water Act. EPA’s must assert its authority in the face of WVDEP’s intransigence; further appeasement will only encourage more defiance by WVDEP.

Continue reading…

Activists take their message to Arch Coal HQ

The Gazette’s Dr. Paul Nyden had the story this morning about seven anti-mountaintop removal activists who took their protest against the practice to Arch Coal’s corporate headquarters in St. Louis:

Seven people, including at least one West Virginian, locked themselves to a 500-pound potted tree inside Arch Coal’s headquarters in Creve Coeur, Mo. on Tuesday in a protest against strip mining.

A larger group performed songs and dances in the building’s lobby, according to the protesters, who are affiliated with the groups Radical Action for Mountain Peoples’ Survival, Missourians Organizing for Reform and Empowerment, and Mountain Justice.

“We’re here to halt Arch’s operations for as long as we can. These coal corporations do not answer to communities, they only consume them. We’re here to resist their unchecked power,” Margaret Fetzer, one of the protesters, said in a news release.

Continue reading…

Photo by Vivian Stockman, Ohio Valley Environmental Coalition

West Virginia’s political leaders continue to say very, very little about the major news latest week that one of the region’s largest coal producers is moving away from — and eventually abandoning altogether — the use of mountaintop removal and all other types of surface coal mining.

As noted previously, we finally did get a comment from Sen. Jay Rockefeller, D-W.Va.:

There is a lot of change happening in the coal industry, and it’s important that we all work through these issues together and focus on investing in clean coal for the future. I’ve made it clear to Patriot that I have very real concerns about protecting miners’ health and pension benefits, and I hope this is a step in that direction. They need to stand by the promises they’ve made to their miners.

And a bit later, we got this comment from Gov. Earl Ray Tomblin:

The Governor hopes this decision the company has made will help them recover financially and continue to produce and employ in the West Virginia coal industry.

Oddly enough, one of the most substantive comment so far came from Rep. David McKinley, R-W.Va., who issued this statement:

Our sympathy goes out to the miners impacted by this decision as they face an uncertain future in a sluggish economy. We are concerned for both the miners who may be laid off over time and for the families in surface mining communities. Like many other companies in the industry, Patriot is being forced to make some painful choices. Faced with a difficult situation, Patriot is making an effort to ensure its long term health for its employees while being sensitive to the environment.

Rep. McKinley is right that coal companies are being forced to make some painful choices — painful especially for their employees and the communities where they live. But even his statement didn’t really focus on what’s really happening here, are at least part of what’s happening: When forced to comply with the law, coal companies find that the costs of mountaintop removal are so high that they can’t do that type of mining and make the sort of profit their want.

Pat Parenteau, who teaches environmental policy at the Vermont Law School, explained it in our follow-up story in the Sunday Gazette-Mail:

When the law finally catches up with industries like the coal industry, and it starts to be reflected on their balance sheets, that’s when you see changes in corporate thinking.

Professor Parenteau reminded me of the study last year, published by the journal American Economic Review, detailing some of the “externalized” damages caused by the coal industry.

Heck, even Patriot CEO Ben Hatfield pointed to these sorts of overriding economics, first in his company’s prepared statement, which he read in federal court last week:

Patriot Coal has concluded that the continuation or expansion of surface mining, particularly large scale surface mining of the type common in central Appalachia, is not in its long term interests. Today’s proposed settlement commits Patriot Coal to phase out and permanently exit large scale surface mining and transition our business primarily toward underground mining and related small scale surface mining.

… and again in an interview with me after the court hearing:

It’s a matter of industry’s natural need to reduce risks. I think it recognizes the reality in our industry that large-scale surface mines have a lot of risks associated with them both in terms of market and regulatory risks.

Now, maybe industry officials like Bill Raney are right, and Patriot’s situation is so different from other coal producers that it’s wrong to suggest Patriot’s phase-out of surface mining could be the start of a trend. As Bill told me:

It’s one company trying to restructure itself. This doesn’t change anything. I don’t think you can apply this universally across the industry or across the state.

But the real reason that we don’t hear much from political leaders about this Patriot settlement is that other factors — such as the low price of natural gas and the mining out of Southern West Virginia’s best and easiest-to-get coal reserves — are also at play here. As mining engineer John Morgan told me:

There are only a limited number of large-scale surface mine-able reserves left and it’s not attractive economically. There are still opportunities for limited-scale surface mining. There will still be surface mining, but it won’t be large and it won’t be with draglines.

If coalfield elected officials were to admit these things — I mean really admit them — then they would need to also admit the need to take some action, to come up with a plan for dealing with the economic implications of a major coal decline. So far, our leaders just aren’t able to do that.

Strip mining phase-out deal leave some speechless

Photo by Vivian Stockman, OVEC. Flyover courtesy of Southwings.

Now it’s become pretty common over the last four years that any development about mountaintop removal or the coal industry in general — especially if it’s something perceived as another overreach by the Obama administration –prompts West Virginia political leaders to fall all over themselves to get out press releases offering their views.

But a funny thing happened today when word emerged from federal court in Huntington that Patriot Coal had reached a deal with three citizen groups to phase out its use of mountaintop removal and to, eventually, “permanently exit large-scale surface mining” — silence. As I write this, after 6:30 p.m. on Thursday, I’ve gotten only one statement from Gov. Earl Ray Tomblin and our state’s congressional delegation. Rep. David McKinley, R-W.Va., issued this:

Our sympathy goes out to the miners impacted by this decision as they face an uncertain future in a sluggish economy. We are concerned for both the miners who may be laid off over time and for the families in surface mining communities. Like many other companies in the industry, Patriot is being forced to make some painful choices. Faced with a difficult situation, Patriot is making an effort to ensure its long term health for its employees while being sensitive to the environment.

I did get a quick note from a spokesman for Rep. Nick J. Rahall, D-W.Va., saying:

… Don’t think we will have comment today – still taking a look at the legal settlement and need some time to review.

Well, at least one member of Congress from neighboring Kentucky didn’t need any more time to review the Patriot deal. Rep. John Yarmuth issued this statement:

This agreement is a clear admission of the dangers of mountaintop removal coal mining and a key victory for the Appalachian community. I commend Patriot Coal for acknowledging the destructive impact of mountaintop removal and for taking steps to protect the communities where it operates. An industry leader finally recognizing that it can be successful without employing this devastating practice is significant progress. Now it’s time for Congress to step up and enact legislation protecting all of Appalachia.

Our elected leaders weren’t the only ones who didn’t have much to say today. Folks from the West Virginia Coal Association didn’t return my phone calls. Bill Bissett, president of the Kentucky Coal Association, declined comment.  And this was all that Carol Raulston, spokeswoman for the National Mining Association, had to say:

The agreement appears to be consistent with Patriot’s long-term business plan as articulated in their statement today and in prior statements, i.e., to focus on met coal.

Citizen groups and environmentalists, obviously, had plenty to say. You can read the entire press release from the Sierra Club, the West Virginia Highlands Conservancy, and the Ohio Valley Environmental Coalition here. They have a backgrounder posted here that includes links to the settlement documents. A few of the quotes from those folks:

“This is an historic moment for people hardest hit by mountaintop removal coal mining,” said Michael Brune, Executive Director of the Sierra Club. “Tens of thousands of people have worked tirelessly to put an end to this destructive process, and today’s agreement is a major step towards ending this abhorrent form of mining and repairing the damage done to communities and ecosystems across the region. Patriot Coal may be the first company to cease mountaintop removal mining but, because of the tireless efforts of committed volunteers and community organizations, it certainly won’t be the last.”

“It’s heartening any day we learn that a major player decides that mountaintop removal is not in the best interest – of the company or of our mountains, streams, and communities,” said Jim Sconyers, Chairman of the West Virginia Sierra Club. “We look forward to the day when full implementation of this agreement is achieved.”

“We’ve been saying for many years that if companies had to pay the real costs of mountaintop removal, it would not be economically feasible,” said Cindy Rank of the West Virginia Highlands Conservancy. “Hopefully, it’s now become clear that when coal companies are required to prevent illegal selenium pollution and pay the costs for cleanup themselves it’s simply doesn’t make economic sense to continue this destructive form of mining.”

“We hope that this agreement, while holding Patriot responsible for its legacy of mining pollution, puts the company in a strong enough financial condition through its underground mining that it can honor its obligations to its retirees and workers,” said Dianne Bady of the Ohio Valley Environmental Coalition.

Continue reading…

Here’s the full statement read in federal court today by Patriot Coal CEO Ben Hatfield about his company’s decision to phase out mountaintop removal coal mining:

Patriot Coal has concluded that the continuation or expansion of surface mining, particularly large scale surface mining of the type common in central Appalachia, is not in its long term interests. Today’s proposed settlement commits Patriot Coal to phase out and permanently exit large scale surface mining and transition our business primarily toward underground mining and related small scale surface mining.

Patriot Coal recognizes that our mining operations impact the communities in which we operate in significant ways, and we are committed to maximizing the benefits of this agreement for our stakeholders, including our employees and neighbors. We believe the proposed settlement will result in a reduction of our environmental footprint.

This settlement is consistent with Patriot Coal’s business plan to focus capital on expanding higher margin metallurgical coal production and limiting thermal coal investments to selective opportunities where geologic and regulatory risks are minimized.

Patriot Coal urges the Court to approve the settlement because it strengthens the Company’s ability to continue operating with our nearly 4000 employees, and significantly increases the likelihood that we will emerge from the chapter 11 process as a viable business, able to satisfy our environmental and other obligations.

Photo by Vivian Stockman, Ohio Valley Environmental Coalition

We’ve got this afternoon’s huge breaking news from the coalfields on the Gazette website:

Patriot Coal has agreed to phase out mountaintop removal and other forms of strip mining in a move Patriot officials say is in the best interests of the company and the communities where it operates.

In a deal with citizen groups, Patriot said it would never seek new permits for large-scale surface mining operations, according to details of the settlement revealed during a federal court hearing here this afternoon.

St. Louis-based Patriot can continue some existing and smaller mining projects, but must also implement a cap on surface production and eventually stop all strip mining when existing coal leases expire.

The deal does not require Patriot to immediately close any mines or lay off any workers. The company must cut corporate-wide surface production starting in 2014, and gradually reduce it to no more than 3 million tons annually – less than half of 2011 surface output – by 2018.

Ben Hatfield, president and CEO of Patriot, said the plan should help his company emerge from bankruptcy, focus on underground mining, and curb mountaintop removal’s effects on coalfield communities.

“Patriot Coal recognizes that our mining operations impact the communities in which we operate in significant ways, and we are committed to maximizing the benefits of this agreement for our stakeholders, including our employees and neighbors,” Hatfield told U.S. District Judge Robert C. Chambers. “We believe the proposed settlement will result in a reduction of our environmental footprint.”

Michael Brune, Executive Director of the Sierra Club, said:

This is an historic moment for people hardest hit by mountaintop removal coal mining … Tens of thousands of people have worked tirelessly to put an end to this destructive process, and today’s agreement is a major step towards ending this abhorrent form of mining and repairing the damage done to communities and ecosystems across the region. Patriot Coal may be the first company to cease mountaintop removal mining but, because of the tireless efforts of committed volunteers and community organizations, it certainly won’t be the last.

And Dianne Bady of the Ohio Valley Environmental Coalition said:

We hope that this agreement, while holding Patriot responsible for its legacy of mining pollution, puts the company in a strong enough financial condition through its underground mining that it can honor its obligations to its retirees and workers.

UPDATED:

Patriot’s “global settlement” is posted online here.

King Coal Highway: If we build it, will jobs come?

You remember how just before the election — when residents around our state were worried about the approaching Superstorm Sandy — West Virginia political leaders put out a press release attacking the Obama administration, alleging permit reviews by the U.S. Environmental Protection Agency were holding up a mining project related to the King Coal Highway, and potentially costing the southern coalfields thousands of jobs?

Sen. Joe Manchin was especially upset, saying in the release:

As a West Virginian, I watched this project come together one partnership at a time for the past two decades. As Governor, I made sure that the state supported the project’s permitting and funding requests. Now, as Senator, I am incensed and infuriated that the EPA would intentionally delay the needed permit for a public-private project that would bring so many good jobs and valuable infrastructure to communities that so desperately need them. The EPA has lost court case after court case for its overreach, and it should be using better judgment by now. I vow to work with the Governor’s office, our entire Congressional delegation and members of both parties to make sure that this vital project will move forward.

Rather than fight this project, the EPA should be embracing it as a model of how to work together. We’ll put the land to good use after it has been mined by building the King Coal Highway. We’ll build a wastewater treatment plant that will clean up millions of gallons of water for people in the Pigeon Creek Watershed – eliminating raw sewage and other pollutants. Not only will we be protecting the jobs of the 145 people working at this project, we’ll be putting hundreds more people to work with good-paying jobs. The EPA’s callousness jeopardized the funding for all these projects. In short, this project is a win-win and the EPA is trying to make it a loser.

Let’s ignore for a minute the question of whether it is appropriate for a governor to step in and make sure the state “supported … the permitting” of a particular strip mine. Let’s focus instead on this job business, and look closely at what the congressional delegation’s press release, issued by Sen. Manchin’s office, said about the project related to CONSOL Energy’s Buffalo Mountain permit, on one end of the King Coal Highway project. Here’s the important line:

The Mingo County Redevelopment Authority estimates that 2,000 acres of land could be developed and 2,500 new jobs could be created in the next 15 years.

Sounds pretty great, right? I wanted to know more, so I asked Emily Bittner, Manchin’s media spokeswoman, where exactly Sen. Manchin got those figures. She was kind enough to send me this Mingo County Redevelopment Authority fact sheet, and to highlight what she felt was the relevant portion of it:

The most significant of our post mine land use projects which are currently under construction include a fifteen mile section of the I-73/I-74 King Coal Highway and the Mingo County Air Transportation Park. The completion of these projects in accordance with our LUMP [Land Use Master Plan] will result in a savings to taxpayers of nearly $400 million, the creation of over 2,000 acres of developable land in which new business and industry will be recruited, and the subsequent creation of 2,500 new jobs within the next 15 years.

Still sounds pretty great, doesn’t it? Keep in mind that the good folks at the Mingo County Redevelopment Authority are leaders in this area, being one of the few local development groups in West Virginia that’s been very successful in working on post-mining development projects for mountaintop removal and other mining sites.

But this was where I got a little confused, because when you check the authority’s website, they have this to say about post-mining development along the highway’s path:

Construction of the 15 mile section of the King Coal Highway as a Post Mined Land Use project will create 1,500 acres of developable property and tremendous potential for diversification of Mingo County’s job market.

Continue reading…

West Virginia Gov. Earl Ray Tomblin  is briefed by Jimmy Gianato, right, state director of homeland security and emergency management, at the National Guard Armory before a teleconference with officials scattered throughout storm-affected areas of West Virginia, Wednesday, Oct. 31, 2012, in Charleston, W.Va. At left is West Virginia National Guard Adjutant Gen. James Hoyer. (AP Photo/Charleston Daily Mail, Craig Cunningham)

It’s interesting to watch what’s happened over the last few days in New Jersey, where Gov. Chris Christie — one of Republican presidential candidate Mitt Romney’s biggest and most vocal supporters — has lavished praise on President Obama and the administration’s response to the devastation from Hurricane Sandy. I mean, wow, here’s a bit of what happened, courtesy of The Hill:

The governor of the storm-ravaged state of New Jersey, Chris Christie (R), said Tuesday that he wasn’t “concerned or interested” in presidential politics at the moment.

Christie, an outspoken surrogate for Republican presidential candidate Mitt Romney, said he was focused on rescuing residents and rehabilitating his state, when asked about reports that the GOP nominee might visit New Jersey to tour damage left in the wake of Sandy.

“I have no idea nor am I the least bit concerned or interested. I’ve got a job to do here in New Jersey that’s much bigger than presidential politics and I could care less about any of that stuff. I have a job to do,” said Christie on “Fox and Friends.”

“I’ve got 2.4 million people out of power. I’ve got devastation on the shore. I’ve got floods in the northern part of my state. If you think right now I give a damn about presidential politics then you don’t know me.”

But here in West Virginia, some of our elected officials have more than enough time for politics, especially coal politics.  On Tuesday, while thousands of West Virginians were without power and heat, buried under huge amounts of snow from a climate change-fueled “Frankenstorm, Sen. Joe Manchin’s office had time to send out a press release blasting the Obama administration’s Environmental Protection Agency:

U.S. Senators Joe Manchin and Jay Rockefeller, Rep. Nick Rahall and Governor Earl Ray Tomblin (all D-W.Va.) are outraged with the Environmental Protection Agency’s delay of a key permit that would allow the CONSOL mine and King Coal Highway to move forward …  After the EPA delayed issuing a needed 402 permit, CONSOL issued a WARN Notice tonight notifying workers that they would be laid off.

It was kind of sad to see that even Sen. Rockefeller got involved, though his comments were a bit more restrained than those from Sen. Manchin, Gov. Tomblin and Rep. Rahall:

People deserve straight answers from the federal government, without the delays and uncertainty. West Virginia can’t move forward if projects that have been negotiated for so many years remain stuck in limbo, with no clear end in sight.  And WARN notices are themselves a tremendous hardship for miners and their families.  We are talking about real people and real paychecks that provide food and shelter for real families. I want to be sure that these hard working miners don’t get caught in the middle of bureaucracy and delay. There is simply too much at stake. Both sides must come together to get this resolved for Mingo County and throughout southern West Virginia.

And even CONSOL seemed to be trying not to make too much of all of this, burying this little comment at the end of their corporate press release:

CONSOL Energy is appreciative of the efforts of the state of West Virginia to issue all the required permits under their jurisdiction and remains optimistic that as the company continues to work with federal, state, and local officials, it will be ultimately successful in securing the approvals necessary to enable jobs and economic development for the mine and highway project in Mingo County and the state.

Continue reading…

EPA responds to CONSOL permit criticism

Last evening’s coverage of the CONSOL announcement about layoffs that it and state political leaders are blaming on the Obama administration EPA noted that federal agency officials had not yet commented on the matter — which isn’t unusual, given the lack of transparency that has taken over EPA under President Obama. The AP story included the common refrain from journalists these days that EPA did not respond to requests for comment. In my blog post, I went back and quoted from letters showing EPA’s previously expressed concerns about the impacts of this project.

Finally this morning, we received the following comment from EPA press secretary Alisha Johnson:

EPA is not aware of any outstanding permitting issues for the Miller Creek mine, where CONSOL Energy has announced that layoffs are occurring. Review of the company’s Buffalo Mountain mining project is a high-priority for EPA. The Agency is actively working with the State of West Virginia and CONSOL, and with its partner federal agencies, to assess impacts on water quality from mining, and is meeting with CONSOL to review its mining plans.

Last Friday, EPA notified West Virginia officials that the agency’s concerns about the State’s draft Clean Water Act Section 402 permit to address potential pollution discharges from CONSOL’s proposed Buffalo Mountain Coal Mine have been resolved. The draft 402 permit was submitted to EPA by the state in late 2011, and the state made additional submissions to EPA as late as this October. The Agency then worked to make a decision as quickly as possible. This step will enable the state to approve a permit for discharges associated with the mine. EPA is taking this step after reviewing new information provided by CONSOL, detailing actions that will be taken by the company to reduce potential water quality impacts from the mine.

The U.S. Army Corps of Engineers continues to review the proposed mine under Section 404 of the Clean Water Act and to complete preparation of an Environmental Impact Statement under the National Environmental Policy Act. EPA will work with our federal and state agency partners to complete the CWA and NEPA processes for the Buffalo Mountain project and associated King Coal Highway. Review under the Clean Water Act and NEPA will help ensure that the overall project protects water quality and safeguards public health, while providing valuable economic benefits.

UPDATED: It’s worth making clear here that the issue for the Miller Creek Mine workers is that operation is about done, and CONSOL plans to move those employees to the Buffalo Mine. So while there may be no permit issues for Miller Creek, the permit issues at Buffalo are what is costing the Miller Creek workers their jobs.

Interestingly, EPA’s Johnson also made reference to a recent story from the Akron Beacon Journal, headlined, Consol Energy, EQT see third quarteer earnings drop, and quoted this part of that story:

The two major Marcellus Shale energy companies headquartered in the Pittsburgh area — Consol Energy and EQT Corp. — both posted a year-over-year drop in third quarter earnings on Thursday.

Consol Energy posted a net loss of $11 million, or 5 cents per diluted share, for the third quarter, down from the profit of $167 million and 73 cents reported last year — and the first quarterly net loss for the company since 2007.

Total revenue for the quarter ended Sept. 30 was $1.16 billion, down from the $1.52 billion of the same quarter in 2011. Consol shares closed Thursday at $34.42, down 21 cents.

The Cecil-based coal and natural gas firm warned investors earlier this month to expect a loss because of planned and unplanned coal mine idlings.

On Thursday, the company revealed just how much money is thought to have been lost as a result of some of the idlings. Conveyor belt malfunctions in July that temporarily idled four longwall mines slashed an estimated $53 million from the company’s third-quarter income. The mines with the broken belts are now operating at 60 percent capacity, and are expected to be at full operation levels in the fourth quarter.

Consol also voluntarily reduced production at its flagship Buchanan mine during the third quarter, saying the company did not want to sell coal at a time when export markets like Europe and Brazil have decreased demand. The company said it doesn’t plan on investing in new coal expansion projects until markets improve.

Meanwhile, Consol’s production in the Marcellus Shale natural gas formation during the third quarter increased 16 percent to 10.1 billion cubic feet.

The EPA statement also said:

The Administration has made clear that coal is a critical part of the nation’s economy and energy security. The United States continues to be a leader in coal production. In 2011, there were more coal miners employed in the U.S. than in any year since 1997, and U.S. coal exports rose 31% over the prior year – and are projected to continue to rise.

Late this afternoon, word came down from CONSOL Energy’s corporate headquarters outside of Pittsburgh:

CONSOL Energy Inc. (NYSE:CNX) has issued notice under the Worker Adjustment and Retraining Notification Act (WARN) of its intent to idle its Miller Creek surface operations near Naugatuck, W. Va., resulting in a layoff impacting approximately 145 employees. Operations impacted include the company’s Wiley Surface Mine, Wiley Creek Surface Mine, Minway Surface Mine, Minway Preparation Plant, and Miller Creek Administration Group, all located in Mingo County, W. Va. The layoffs will occur during a 14-day period beginning at 12:01 a.m., on December 30, 2012. Employees were officially briefed on the situation today. At this time underground operations will not be affected.

The release continued:

CONSOL Energy attributed the idling of its Miller Creek operations to a sequence of permit delays that has prevented the company from securing all of the necessary environmental permits required to continue mining as identified in the company’s mine plan.

Now, that release showed up in my email inbox at 5:18 p.m. And wouldn’t you know it, not even 10 minutes later, at 5:27 p.m., another release showed up saying:

U.S. Senators Joe Manchin and Jay Rockefeller, Rep. Nick Rahall and Governor Earl Ray Tomblin (all D-W.Va.) are outraged with the Environmental Protection Agency’s delay of a key permit that would allow the CONSOL mine and King Coal Highway to move forward.

Gov. Tomblin, for example, opined:

Once again the EPA has stepped in the way of a great project here in West Virginia. The EPA has been delaying this project for far too long. Even after losing all of these court battles, the EPA cannot seem to understand the big picture and the true scope of its authority. Instead of stalling and creating unnecessary impediments, we should be working together to put people to work, develop our infrastructure, and provide the low-priced energy that our Country needs. This project would accomplish all three of these crucial goals. I will continue to fight for our coal miners and to work with our Congressional delegation and CONSOL to make this project a reality.

Now, among the more interesting things about all of this is this little paragraph, buried at the end of CONSOL’s press release:

CONSOL Energy is appreciative of the efforts of the state of West Virginia to issue all the required permits under their jurisdiction and remains optimistic that as the company continues to work with federal, state, and local officials, it will be ultimately successful in securing the approvals necessary to enable jobs and economic development for the mine and highway project in Mingo County and the state.

Ah, but such optimism doesn’t stop our state’s elected leaders like Sen. Joe Manchin from firing off stuff that attacks “EPA’s callousness” and says “this project is a win-win and the EPA is trying to make it a loser.”

We’ve written about this project before over the last few years, and it’s worth noting that this particular mining permit, which is part of the King Coal Highway project, was first objected to by the Obama EPA on inauguration day in January 2009 (see this post and this link to read EPA’s original letter). It’s also worth remembering that EPA officials aren’t the only ones who have questioned the King Coal Highway. The Affiliated Construction Trades Foundation, for example, has objected to a no-bid contract for part of the construction, and residents have alleged parts of the project caused or contributed to local flooding.

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Citizen groups challenge two new mining permits

Breaking news this evening in a press release from the Sierra Club:

The U.S. Army Corps of Engineers failed to account for the negative health impacts on people living near new mines in eastern Kentucky and West Virginia according to two separate lawsuits filed today by the Sierra Club and Kentuckians For The Commonwealth in Kentucky and the Sierra Club, Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch in West Virginia.

The groups acted to block two U.S. Army Corps of Engineers permits – one that allows Leeco, Inc. to destroy more than 3 miles of streams and construct one enormous valley fill at the Stacy Branch mine along the Perry and Knott County border in eastern Kentucky and a second that allows Raven Crest Contracting to destroy nearly 3 miles of streams at the Boone #5 mine in Boone County, West Virginia.

The permits, a requirement under the Clean Water Act to begin mountaintop removal mining, were issued by the Corps on July 26th for Leeco and August 30th for Raven Crest. The organizations contend that the Corps was wrong in issuing the permits because it failed to consider the health impacts on people living near the mines.

Coal is changing, so when will W.Va. catch up?

In their announcement earlier this week of a “strategic repositioning plan,” Alpha Natural Resources officials spoke some real truths about what’s happening with the coal industry in general and the Appalachian region’s coalfields in particular.

Kevin Crutchfield, Alpha’s CEO, said for example:

With fundamental changes taking place in our business, we’re taking decisive actions that set the table for Alpha to compete successfully as a leader in the global coal markets for years to come.

And Paul Vining, Alpha’s president, added:

The focus and shape of our company need to change to reflect our new business environment.

What also struck me was what was missing from Alpha’s announcement: No mention of the “war on coal”. No verbal attacks on EPA or the Obama administration. The only hint of anything like that was this:

Alpha’s rationalization efforts focus on thermal coal operations that have a cost, customer or transportation advantage. Operations that have competitive cost positions and more stable customer demand — such as supplying baseload power plants and generating units that will survive a stricter regulatory regime — will supply the majority of the company’s U.S. thermal coal output.

Don’t get me wrong. Alpha and the rest of the coal industry are still going to do their best to defeat President Obama’s re-election.  The New York Times noted recently:

Some of the mightiest players in the oil, gas and coal industries are financing an aggressive effort to defeat him, or at least press him to adopt policies that are friendlier to fossil fuels … With nearly two months before Election Day on Nov. 6, estimated spending on television ads promoting coal and more oil and gas drilling or criticizing clean energy has exceeded $153 million this year, according to an analysis by The New York Times of 138 ads on energy issues broadcast this year by the presidential campaigns, political parties, energy companies, trade associations and third-party spenders.

Just yesterday, we had reports out of Florida about another fundraiser for Republican candidate Mitt Romney co-hosted by billionaire coal operator Chris Cline.

But if you read the Alpha announcement carefully, it’s a clear statement — aimed mostly at investors, not the folks of the coalfields where Alpha operates — that the company understands fundamental changes are occurring in the energy business, and is adapting its company to deal with those changes. Steam coal, especially from Appalachia, is losing a big hunk of its market. Met coal may provide some cushion, but it’s far from clear how much. Alpha even acknowledges this is going to bring hard times for the places where it mines coal:

We must have a nimble operating model, superior cost management and an overhead structure that matches our streamlined operational footprint. We recognize these changes will impact our people, suppliers and communities in some areas where we operate. Alpha is committed to acting transparently and responsibly throughout the transition, with respectful consideration of our people and all other stakeholders.

This is in great contrast to Governor Romney’s campaign rhetoric, which is promoting the incredibly questionable notion that we have almost unlimited supplies of coal, and that if you’ll just help him get President Obama out of the White House, the good times will be rolling again in the coalfields.

And it’s certainly in contrast to the show put on today in the U.S. House of Representatives by the Republican leadership, which on its last legislative day before the general election decided to have “Stop the War on Coal Act” day, recycling bills that have already passed the House, but are going nowhere in the Senate and face a veto threat from the White House. West Virginia Reps. Shelley Moore Capito and David McKinley, both R-W.Va., were both in the thick of it.

The spectacle brought a remarkable editorial from the Roanoke Times:

The Enemies of Coal were everywhere this week after Bristol-based Alpha Natural Resources announced that it will close eight mines, including three in Virginia. About 1,200 workers will be affected, although most in the commonwealth will be reassigned to other mines.

Rep. Morgan Griffith, R-9th District, lobbed a predictable news release into the ether accusing a “group of government bureaucrats” of trying to force the coal industry out of business. Senate Republican candidate George Allen and GOP presidential nominee Mitt Romney chimed in with similar screeds against President Barack Obama, the Environmental Protection Agency and, of course, their election opponents.

In truth, we are all enemies of coal, not because we wish harm on families who depend on mining for their livelihoods, but because our expectations have changed.

We still want cheap electricity. That part hasn’t changed. But we also want streams and rivers free of mercury. We want a planet that will not be suffocated by greenhouse gases before our grandchildren become grandparents.

In the past, we had to make trade-offs between two conflicting desires. But as study after study documented the terrible cost to our environment and our health from coal’s filthy byproducts, technology and the market changed, too, and offered us a cleaner and cheaper alternative in the form of natural gas.

Alpha executives acknowledged the role of competition from natural gas in their decision this week, along with the cost of environmental and health regulations. Electric utilities are building new natural gas power stations. Even Appalachian Power Co., its ties to coal seemingly forged in the Mesozoic Era, is converting some of its aging plants to natural gas.

More broadly, Alpha is reorganizing after its purchase of Massey Energy and focusing on metallurgical coal. The newly constituted company stands to benefit from pent-up demand from China, where infrastructure investments continue at a pace that simply doesn’t exist here, in part because economic reforms have been frozen by partisan bickering in Washington, D.C.

The economy has changed. Alpha has changed. We have changed. Yet Republican politicians continue to shake their fists at the future. If that is all the party has to offer, then it’s time for a leadership change as well.

And over at The New York Times, the brilliant editorial writer Robert B. Semple Jr. reminds us that this wasn’t always the way Republicans handled environmental issues, in a blog post about the death of Russell Train, a lifelong Republican who served as President Nixon’s first Council on Environmental Quality Chairman and as EPA administrator:

Within hours of Mr. Train’s death, Republican leaders in the House brought to the floor a bill called “Stop the War on Coal Act, “ which seeks to weaken and in some cases overturn laws and rules protecting the very things that Mr. Train stood for – clean air, clean water, a stable climate and fair effective regulation of the big polluters, including but not exclusively the fossil fuel industry.

… In recent years, much to his surprise as an old Republican loyalist, but perfectly in keeping with his values, Mr. Train found himself working behind the scenes to defend the Obama administration and especially its embattled E.P.A. chief, Lisa Jackson, in her efforts to regulate greenhouse gas emissions linked to climate change. He was also a strong supporter of President Obama’s most important environmental achievement so far, the agreement with Detroit to double automobile efficiency and greatly reduce greenhouse gas emissions from vehicles by 2025.

One suspects, however, that his final years would have been much happier had he been spared the sight of his own party trashing much of what he worked for.

Of course, here in West Virginia, it’s not just the Republicans who want to dismantle basic environmental protections and prevent the Obama EPA from working to reduce mountaintop removal pollution, protect public health and save the global climate.

Democratic Sen. Joe Manchin, for example, wanted in on the action. And Rep. Nick J. Rahall, D-W.Va., wanted to be sure that residents of his districtwho face increased risks of birth defects and cancer because they live near mountaintop removal mining — know that he authored portions of the Republican-championed “Stop the War on Coal Act.”

Having crafted essential components of this pro-jobs bill, I am pleased that the House has spoken so strongly today in support of our coal miners and their families. The true soldiers in this war are our coal miners who simply want to do their jobs and earn an honest living to provide for their families. I have been proud to stand in the trenches and fight with our miners and I was proud to stand with them in passing this legislation today.

There was one West Virginia political leader who was willing to distance himself from all of this. Yesterday, Sen. Jay Rockefeller, D-W.Va., issued a statement announcing that he was introducing new legislation aimed at trying once again to jump-start carbon capture and storage technology — the only thing that could save the coal industry in a carbon-constrained world. I asked Sen. Rockefeller’s office what the senator thought of today’s doings over in the House, and this is what the senator had to say:

I’ve opposed much of this legislation in the past because it undermines important environmental and health protections without moving coal forward.

This is yet another effort by House Republicans to score political points by pushing bills they know won’t become law instead of working to find actual solutions. It’s time to stop the games and start looking toward the future, diversifying our economy in West Virginia, and laying out a path for truly clean coal technology.

Now, you may not think there’s any such thing as “clean coal,” especially is you live near a mountaintop removal mine. And you may not think that CCS is ever going to really work, be safe, or become cost effective.  But at least Sen. Rockefeller is no longer falling for the overly simple and false promise of thinking that a win over the Obama administration’s coal policies is going to mean smooth sailing for Southern West Virginia or the rest of the Appalachian coalfields.

Plans like the one Alpha announced earlier this week show that coal companies are changing. Those changes might help those companies remain profitable, protecting their shareholders from damage as the industry declines. But those plans aren’t going to protect every coal miner’s job. They aren’t going to improve our educational system or diversify our economy. West Virginians can’t count on the coal industry to do those things. Can we count on ourselves?

WVU paper provides more on MTR, health links

We’ve talked before on this blog about West Virginia University research that found rats exposed to dust from mountaintop removal communities showed changes in the diameter of blood vessels, which could in turn reduce blood flow. The research is among the work going on now that aims to explain the findings of WVU’s Michael Hendryx that residents living near mountaintop removal sites face greater risks of serious disease, including cancer and birth defects.

Well, the full scientific paper on this issue is out now. You can read the abstract here, but the full paper is available by subscription only I’m afraid. Here’s the abstract:

Objective

Air pollution particulate matter (PM) is associated with cardiovascular morbidity and mortality. In Appalachia, PM from mining may represent a health burden to this sensitive population that leads the nation in cardiovascular disease, among others. Cardiovascular consequences following inhalation of mountaintop mining (MTM)-derived PM (PM-MTM) are unclear, but must be identified in order to establish causal effects.

Methods

PM was collected within 1 mile of an active MTM site in southern West Virginia. The PM was extracted and was primarily <10 μm in diameter (PM10), consisting largely of sulfur (38%) and silica (24%). Adult male rats were intratracheally instilled (IT) with 300 μg PM-MTM. Twenty-four hours following exposure, rats were prepared for intravital microscopy, or isolated arteriole experiments.

Results

PM-MTM exposure blunted endothelium-dependent dilation in mesenteric and coronary arterioles by 26%, and 25%, respectively, as well as endothelium–independent dilation. In vivo, PM-MTM exposure inhibited endothelium-dependent arteriolar dilation (60% reduction). α-adrenergic receptor blockade inhibited perivascular nerve stimulation (PVNS)-induced vasoconstriction in exposed animals compared to sham.

Conclusions

These data suggest that PM-MTM exposure impairs microvascular function in disparate microvascular beds, through alterations in NO-mediated dilation and sympathetic nerve influences. Microvascular dysfunction may contribute to cardiovascular disease in regions with MTM sites.

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Judge refuses to block Alpha mine during appeal

U.S. District Judge Robert C. Chambers has just issued this order, which denies a request from the Ohio Valley Environmental Coalition and other groups for an injunction to block Alpha Natural Resources subsidiary Highland Mining’s Reylas Surface Mine permit while those citizen groups appeal a ruling allowing the mine to proceed.

Judge Chambers ruled that the citizen groups are unlikely to succeed on the permits on their appeal, meaning they didn’t meet the legal test to obtain such an injunction (we went through some of the legal discussions about all of this in a previous post here).

The judge did, however, extended his previous stay of the mining for 14 days, to give the citizen groups time to try to convince the 4th U.S. Circuit Court of Appeals to grant an injunction while a full appeal is heard.

Remembering the ‘Keeper of the mountains’

Larry Gibson, an environmental activist against mountaintop removal, holds a photo in protest at a rally for coal Thursday, Jan. 20, 2011 at the Capitol in Charleston, W.Va.  (AP Photo/Jeff Gentner)

Word came in last night from various environmental groups that Larry Gibson had died.  This terribly sad news was confirmed on the Keeper of the Mountains blog:

Larry Gibson, long-time environmental activist, died of a heart attack Sunday, September 9, while working on Kayford Mountain, the family home in Raleigh County which he spent the last decades of his life protecting from the coal mining practice known as mountaintop removal.

Kayford was the site of Larry’s birth, the final resting place of 300 ancestors stretching back to the 18th century, and the site of Larry’s annual 4th of July festival celebrating life in the mountains. As part of his effort to preserve the mountains, Larry traveled across the country, to schools, churches and a wide range of public gatherings where he spread his simple gospel about the mountains: “Love em or leave em; just don’t destroy em.”

A private funeral is planned, and Larry’s family has requested that persons wishing to express condolences make donations to Keeper of the Mountains Foundation, which Larry founded in 2004 to support mountain communities.  A public memorial service will be announced at a later time.  Larry is survived by his wife, Carol, two sons Cameron and Larry, Jr. and his daughter, Victoria.  He was sixty-six years old.

It’s been 15 years now since I met Larry and first visited with him at his family’s cemetery at Kayford Mountain. I wrote at the time:

Earl Williams was 14 when he was killed in the mines in 1909. Today, a red ribbon tied around his grave marker tells Princess Beverly Coal how close it can bring heavy equipment and dynamite blasts to Williams’ family cemetery.

White wooden crosses dot the cemetery, which sits on top of Kayford Mountain at the head of Cabin Creek.

A few graves are decorated with plastic flower arrangements or tiny American flags. The dirt still seems fresh on one of the latest graves, that of Delbert Fraker, who died in 1994.

The headstone for the family patriarch, Jack Stanley, and his wife Ella, says the couple is “Resting till the resurrection.” Larry Gibson, Stanley’s great-grandson, is trying to save the cemetery and a nearby park that he created for community picnics and family outings. But it’s a tough job these days.

Strip mines have him surrounded.

Larry told me:

This is the last 54 acres the coal companies don’t own. They own all the rest. I don’t think the coal companies have the right to take everything.

Not long after that, Larry was among the West Virginians featured in Penny Loeb’s landmark exposure on mountaintop removal, published under the headline “Shear Madness” in the magazine U.S. News and World report. Penny wrote:

For Larry Gibson, even more irritating than the drying up of wells is mining close to family cemeteries. The Princess Beverly Mine is so close to his family graveyard atop Kayford Mountain that a mine worker regularly stops by to collect rocks thrown by the blasting. Looking northward at the mountaintop removal, Gibson says, “You used to look up at the hill. Now you look down on it.”

Continue reading…

Judge continues stay on Alpha permit – for now

I just got off the phone after listening in to a conference call hearing held by U.S. District Judge Robert C. Chambers concerning the effort by citizen groups to block Alpha Natural Resources from beginning the mining work under its Clean Water Act permit for the Highland Reylas Surface Mine in Logan County, W.Va.

Recall that Judge Chambers ruled against the Ohio Valley Environmental Coalition and other groups, refusing — despite what he called “unrefuted evidence” about this type of mining’s impact on water quality — to block the Section 404 “dredge-and-fill” permit for the Alpha mine. Now, lawyers for OVEC, the Sierra Club, the West Virginia Highlands Conservancy, and Coal River Mountain Watch, are hoping to keep mining from starting long enough to appeal to the 4th U.S. Circuit Court of Appeals, where a significantly changed lineup of judges could perhaps rule differently than the old 4th Circuit that has overturned repeated lower court rulings aimed at curbing mountaintop removal.

But the appeal could be made moot, if mining moves forward before legal arguments can be made in Richmond, Va.  As Derek Teaney, an Appalachian Mountain Advocates lawyer for the citizen groups pointed out during today’s hearing, “This valley fill can’t be unconstructed.” Once the damage to the environment is done, the case really becomes kind of pointless.

And that’s where the problem comes in … because the issue now has become which legal test Judge Chambers should apply when deciding if he’ll block the mining until an appeal can be heard.

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Groups seek to block Alpha permit during appeal

HUNTINGTON, W.Va. — Handed a negative ruling from U.S. District Judge Robert C. Chambers on an Alpha Natural Resources mountaintop removal permit, citizen groups are now hoping the judge will block the mine temporarily — at least long enough for them to have a chance to get an appeal heard by the 4th U.S. Circuit Court of Appeals.

This morning, lawyers for the Ohio Valley Environmental Coalition and other groups asked Judge Chambers to issue an emergency injunction in the matter, arguing that if work begins at Alpha’s Highland Reylas Surface Mine, an appeal concerning the operation’s Clean Water Act “dredge-and-fill” permit might be pointless. Once the stream is buried, they feared, the case would be moot.

Alpha has apparently agreed to hold off any mining until Aug. 27, giving Judge Chambers time to schedule a more detailed injunction hearing next Thursday morning.

I’ve posted a copy of OVEC’s legal brief seeking the injunction here. The other parties — The U.S. Army Corps of Engineers and Alpha — have until early next week to file their responses.

Keep in mind that to get this type of injunction, OVEC’s lawyers will have to show: They are likely to succeed on the merits of their appeal, they are likely to suffer irreparable harm in the absence of the injunction, that the balance of equities tips in their favor, and that the injunction is in the public interest.

Long-time followers of mountaintop removal litigation know that the 4th Circuit has been where previous West Virginia court rulings — by Judges Charles Haden, Joseph R. Goodwin and Judge Chambers — aimed at curbing mountaintop removal go to be overturned (see here, here, here and here).   But remember that the 4th Circuit now has six new members appointed by President Obama. The Baltimore Sun explained in a story late last year:

The federal appellate court that covers Maryland has for years been considered one of the more right-leaning in the nation, finding that women can be banned from a military institute, that the FDA can’t regulate tobacco and that confessions count even when suspects haven’t been read their rights, among other conservative opinions.

But the 4th Circuit U.S. Court of Appeals now appears to have taken a left turn.

“There’s been a marked change,” said Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank in Washington. “Historically, this has been one of the most, if not the most, conservative circuits. Now it’s almost one of the most liberal.”

Breaking: Judge rules for Alpha in permit case

Word just in from Huntington that U.S. District Judge Robert C. Chambers has ruled in favor of the federal Army Corps of Engineers and Alpha Natural Resources in a challenge to the Clean Water Act permit for Alpha’s Highland Reylas Surface Mine.

I’ve posted a copy of the decision here, and you can read previous coverage of this case here, here and here. We’ll have a more complete report on the Gazette’s website in a bit and in tomorrow’s print edition.

UPDATED: Here’s a link to the Saturday Gazette-Mail print story on Judge Chambers’ ruling. And here’s a response to the ruling from Alpha Natural Resources:

We’re very pleased with the ruling and are thankful for the hard work and thoughtful analysis from the Court.  We firmly believed in our position, and the fact we had undergone a thorough review as required under the Clean Water Act of all aspects of the mine, as well as the fact that we are obligated to fulfill extensive requirements as we mine. The team of professionals at the Corps of Engineers is to be commended for their diligent review and attention to detail in issuing a permit that adequately protects the environment while preserving the ability of the mine to operate. We hope this decision will bring some certainty to the Section 404 permitting process in West Virginia.