Good news!
Last week, the Environmental Protection Agency told the Army Corps of Engineers it should revoke a permit previously issued for the Ison Rock Ridge mountaintop removal coal mining operation in Wise County, Virginia.
Score one for the mountains in Wise County!
The Ison Rock Ridge proposal would devastate nearly 1,300 acres of mountaintop near the town of Appalachia, and dumped mining waste into nearly three miles of tributaries of Looney Creek, Preacher Creak, and Callahan Creek -- all within the Powell River watershed.
The EPA says that filling in three miles of waterways with mining waste doesn’t mesh with the intent of the Clean Water Act.
In reviewing the permit that the Corps had granted to the A & G Coal Corporation, the EPA wrote that the mining operation at Ison Rock Ridge would “significantly degrade” the waters that are protected by the law, and that the Corps should use its discretionary authority to revoke the mining permit -- and insist that the A & G Coal Corporation reapply for a new permit that includes stronger environmental protections.
That means, in all likelihood, that one less mountain in Wise County will be sacrificed to coal!
The EPA ruling represents a major step forward in protecting our mountains here in Virginia -- but we have not yet reached the end of the road.
Energy Efficiency Legislation Update
We’re pleased that the General Assembly addressed energy efficiency during this year’s session, and that the legislators passed bills to encourage investments in energy efficiency and put efficiency measures on a more level playing field with new generation, such as coal-fired power plants. This achievement is due in large part to the efforts of citizens like you who reached out their legislators on the issue.
But the legislature fell short in establishing even voluntary reduction targets, which we need to combat global warming and ensure a clean energy future for our state.
In the one-day veto session last week, the General Assembly unfortunately rejected a proposal from Gov. Tim Kaine that would have set a voluntary goal of reducing energy use 19% by 2025, a primary recommendation of the Governor’s Commission on Climate Change.
By requiring annual progress reports from the utilities toward the voluntary goal, the Governor’s amendment would have given citizens a great opportunity to hold the utilities accountable for progress on energy efficiency initiatives. Although the Senate passed the amendment by a 22-18 vote, the House narrowly rejected it by a 50-47 vote.
On a positive note, two other amendments that you called on your legislators to support were passed. One of these requires the State Corporation Commission to consider the environment as well as economics when making decisions about industry participation in efficiency programs; another eliminates a cumbersome requirement that the Attorney General report to the legislature on the costs-but not the benefits-of efficiency programs.
We will have to redouble our efforts in 2010 to make real progress on reducing harmful global warming emissions and improving our economy here in Virginia.
But you should be proud of all that we’ve accomplished together already in 2009. The EPA ruling and the new laws that help level the playing field for efficiency are major victories -- and your ongoing support have helped to make them happen.
Thank you for everything you do.
Kathy Selvage
Wise Energy for Virginia
The days of mountaintop removal mining may be numbered as the Obama administration takes yet another step in support of clean energy solutions and green jobs. “The days of reckless, unchecked destruction of Appalachian mountains are numbered,” said Mary Anne Hitt, Deputy Director of the Sierra Club’s Beyond Coal Campaign. “There is much more work to do, but President Obama’s EPA has taken bold action on mountaintop removal coal mining, and we applaud their intervention.”
“This is a great day! I am hopeful it means the beginning of the end of the wholesale destruction of the Appalachian Mountains, its watersheds, its streams, its people, and its soul,” said Kathy Selvage, vice president of Southern Appalachian Mountain Stewards (SAMS), a community organization based in Wise County, Virginia, who along with the Sierra Club have worked for two years to oppose strip mining on Ison Rock Ridge.
From their joint press release:
In a victory for community members and for clean water, the Environmental Protection Agency (EPA) this week requested that the U.S. Army Corps of Engineers to revoke the “nationwide 21” mining permit for A&G Coal’s massive Ison Rock Ridge mountaintop removal coal mine in Southwest Virginia. The Army Corps had been relying on a cookie-cutter “nationwide” permit for the Ison Rock Ridge mine, but in the EPA’s recommendation that the Army Corps revoke the permit the Agency raised concerns about the mine’s impact on waterways that were not addressed in the “nationwide” permit. By dumping its mining waste into valleys and waterways, the Ison Rock Ridge mountaintop removal coal mining operation would be extremely destructive. Residents are also concerned with the proximity of the proposed mine to their homes, as portions of the permit are within the corporate limits of the town of Appalachia and surround several other nearby communities.
The Ison Rock Ridge permit in Wise County, Virginia, covers nearly 1,300 acres and would destroy three miles of streams and fill nine lush valleys with more than 11 million cubic yards of rock and dirt. The massive mountaintop removal coal mine would surround the community of Derby, bringing destruction within a half mile of the historic district, eliminating the community’s tourism appeal. Other nearby affected communities include Andover, Inman, and Osaka and the Town of Appalachia.
This is the third time the EPA has lodged objections to mountaintop removal mining permits that the U.S. Army Corps of Engineers was prepared to issue. The two other mines are in West Virginia: 1) Massey Energy’s Republic No. 1 Surface Mine in Kanawha County, WV and 2) Frasure Creek Mining’s Spring Fork No. 2 Mine in Mingo County, WV. Writes Ken Ward, Jr. at the Charleston Gazette, “Together, the three operations would bury about eight miles of streams, according to EPA’s letters”. Mr. Ward has posted the three EPA objection letters here, here and here.
Eileen: Wise County Virginia’s Ison Rock Ridge MTR Permit Denied!
By Steve James
www.reuters.com/article
Date: Fri Feb 13, 2009 4:27pm EST
NEW YORK (Reuters) - A U.S. Court of Appeals on Friday overturned a lower court ruling that had banned surface, or mountaintop, mining in West Virginia, according to court documents. The ruling was hailed by the coal mining companies who have turned to mountaintop mining as an economical alternative to traditional underground mines in Appalachia where production is declining. The environmentalists who brought the original case said they would assess their next legal move, but vowed to fight on against the mining method which basically slices the top off hills and mountains.
Stock in Massey Energy Co which brought the appeal with the U.S. Corps of Engineers, was up 7 percent in late trading on the New York Stock Exchange.
The 4th Circuit judges in Richmond, Virginia, reversed a ruling by U.S. District Court Judge Robert Chambers, who had found that the U.S. Army Corps of Engineers had not fully evaluated the potential environmental damage before approving permits for mountaintop mining for four mines operated by subsidiaries of Massey. “We reverse and vacate the district court’s opinion and order of March 23, 2007, and vacate the district court’s injunction,” Friday’s opinion said.It said that under existing regulations, the state of West Virginia has “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations.”
The appeal had been brought by Massey and the West Virginia Coal Association. Surface mines account for about one-third of coal from West Virginia and half of that from Kentucky. “We’re pleased with the court’s decision,” said Roger Hendriksen, director of investor relations for Massey.
Judge Chambers had originally ruled in favor of a petition filed by a number of groups led by the Ohio Valley Environmental Coalition. (OVEC) Basically, OVEC contended that the Corps of Engineers had violated the Clean Water Act and the National Environmental Policy Act. Since then, the Corps has effectively frozen so-called 404 permits for surface mining. Janet Keating, executive director of OVEC said: “We are deeply disappointed with the court’s decision. We will assess our next step, but obviously we will continue to organize against surface mining.”
In their ruling the appeals judges said basically that the Corps of Engineers had acted within regulations in place. “We cannot say that the Corps’ assessments of stream functions in the challenged permits were arbitrary and capricious.” It is not our place to dictate how the Corps should go about assessing stream functions and losses,” they said.
Analysts had said if the ruling was upheld, Appalachian coal prices could spike and producers with a significant amount of surface exposure in Appalachia could get hurt. Several mining companies -- Massey, International Coal Group, Alpha Natural Resources and Patriot Coal Corp -- would lose production if the ruling went against the miners, the analysts said.
One analyst Mark Morey, director of power systems strategy for Allstom Co Ltd said investors might hold off until the issue had been definitively resolved. “Decisions like this are long term, so if you have any uncertainty, that’s still gonna guide what your investment is. Does this ’overturn’ mean they can have a whole new round of capacity? People have been thinking this decision might be held up anyway so they’ve been making decisions for the past two years with this hanging over their heads.” (Reporting by Steve James; editing by Carol Bishopric).
Give Credit Where Credit is Due
Hunton & Williams - Firm prevails in mining-permit appeal
Hunton & Williams was instrumental in the reversal of two injunctions barring the issuance of new surface mining permits in West Virginia and surrounding states. Heard in the 4th U.S. Circuit Court of Appeals, the cases involved challenges under federal and state environmental laws to the practice of mountaintop mining. In both cases, the District Court for the Southern District of West Virginia entered injunctions that, had they stood, would have prevented commercially viable coal mining in Appalachia, with profound deleterious economic consequences to the States in the region. In both instances, however, the Fourth Circuit vacated the injunctions in landmark decisions under the pertinent environmental laws.
The first case, Bragg, was filed by several environmental groups and citizens of West Virginia against the West Virginia director of surface mining. The lawsuit challenged the legality of so-called “valley fills,” which are made from the rock and soil displaced in mountaintop mining operations and which the plaintiffs claimed are unlawful under West Virginia’s federally approved surface mining program. The district court agreed with plaintiffs and enjoined the state director from issuing any new permits for valley fills (which effectively enjoined mountaintop mining since valley fills are a necessary component of such mining). Hunton & Williams represented the West Virginia Coal Association in the appeal of the injunction. In April 2001, the Fourth Circuit reversed, holding that the injunction violated the Eleventh Amendment’s prohibition on suits against states in federal court notwithstanding the federal approval of West Virginia’s program pursuant to the federal Surface Mining Control and Reclamation Act.
The second case, Rivenburgh, was filed following the Fourth Circuit’s decision in Bragg. To circumvent the Eleventh Amendment, the plaintiff environmental group in Rivenburgh sued the U.S. Corps of Engineers and sought a ruling that the Corps lacks the authority under the Clean Water Act to issue permits allowing the construction of valley fills in waters of the United States. The district court ruled in favor of the plaintiff and enjoined the Corps from issuing any such permits. We represented the Kentucky Coal Association in the appeal of that injunction. In January 2003, the Fourth Circuit rejected the district court’s reading of the Clean Water Act and the Corps’ regulations and set aside the injunction.
Additional Information:
PDF: Feb, 2009: 4th Circuit Court of Appeals Vol. 1
PDF: Jan, 2009: Supreme Court Earth Justice Doc. on Lake Fill