Today’s court decision and what it means for Appalachia

Today was a big day for those fighting to end mountaintop removal coal mining in Appalachia.

A federal appeals court has reaffirmed the U.S. Environmental Protection Agency’s authority to coordinate with the U.S. Army Corps of Engineers when reviewing Clean Water Act permits for mountaintop removal mines. The court also ruled that the EPA’s guidance on conductivity is not a final rule and therefore is not subject to legal challenge.

Read a statement from Appalachian Voices Executive Director Tom Cormons.

In 2009, the EPA and the Army Corps of Engineers began an Enhanced Coordination Process for permitting valley fills associated with large-scale mountaintop removal mining. The process encouraged improved coordination between the two agencies and greater scrutiny of the environmental impacts of each valley fill permit before them.

But as you probably know, the environmental impacts of valley fills are inherently damaging. Just last week, a major study from the U.S. Geological Survey (USGS) found that headwater streams beneath valley fills in southern West Virginia had two-thirds fewer fish than normal streams. Keep in mind that those Appalachian streams are the headwater streams for the drinking water of millions of Americans. Appalachian Voices was also curious about the potential economic impacts of coal pollution and found that there are a lot more jobs supported by the sportfishing industry in Appalachia than surface coal mining jobs — about seven times as many.

The second part of the court decision was related to the EPA’s guidance on conductivity. Conductivity is a measure of metals and salts in water, and elevated levels are toxic to aquatic life. The USGS study also confirmed that conductivity levels below mountaintop removal valley fills are almost always elevated, damaging waters throughout the region.

The EPA released its guidance on conductivity pollution just over four years ago. At the time, then-EPA Administrator Lisa Jackson claimed that “either no or very few valley fills are going to meet standards like this.”

In order to “end coal mining pollution,” as she put it, the EPA was going to use its authority to restrict mountaintop removal valley fills, and thus significantly reduce the amount of mountaintop removal mines in Appalachia. While the guidance would not have put a much-needed permanent end to mountaintop removal, it was an enormous step.

The coal industry fought the guidance with everything that had. Their allies on Capitol Hill held hearings to put political pressure on the EPA to stand down, while industry lawyers simultaneously took the agency to court.

Two years after the guidance had been proposed, it was thrown out by a U.S. District Court. With one bad court decision, EPA’s job to end coal mining pollution was made a lot harder.

Meanwhile, the EPA Region 4 office, which oversees Clean Water Act permitting for Kentucky and other southeastern states, has been ignoring both the guidance and the rigorous science on which it was based. They continue to approve permits for valley fills, including six at one massive mine that got the agency’s OK just last year.

But on Friday, the U.S. Court of Appeals turned the tables. The panel of judges concluded that the guidance stands, as it is not a final rule, and therefore is not subject to legal challenge. Furthermore, they confirmed, and in fact encouraged, the EPA’s enhanced coordination process.

The EPA has the legal authority, scientific evidence, and moral obligation to block every mountaintop removal valley fill permit that comes through its doors. We all share the responsibility of making sure it does just that.

Learn more about Appalachian Voices’ work to end mountaintop removal.

About Thom Kay

AV's Legislative Director, Thom spends his days between Durham, NC and Washington D.C., knee deep in politics and legislation, working to persuade decision-makers to protect Appalachian communities from mountaintop removal and to invest in a new economy for the region. He is the least outdoorsy person at Appalachian Voices, and he's just fine with that.