There was a win this week in the fight to stop the insane practice of mountaintop removal (MTR) mining in the coalfields of West Virginia, Kentucky, and Virginia.
Before getting into the details of the good news, a little context is in order. It is no secret that MTR mining in Appalachia has laid waste to 1.5 million acres of old growth forest and dumped toxic debris in nearly 2000 miles of streams. Companies engaged in MTR mining frequently violate toxic discharge limits in permits, but state regulators are a joke. No one in their right mind thinks the coal industry will ever clean up this mess. When the profit is gone, the taxpayers will be left holding the bag. Of course.
Alpha Natural Resources, one of the biggest coal energy companies in the country, operates a slew of MTR mines in West Virginia. A coalition of environmental organizations (Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and the Sierra Club) filed suit in U.S. district court against two Alpha MTR mining sites. The West Virginia Department of Environmental Protection ignored evidence of violations and refused to act. Here is the gist of the complaint.
Plaintiffs allege that Defendants Elk Run Coal Company, Inc., (―Elk Run) and Alex Energy, Inc., (―Alex Energy) violated these statutes by discharging excessive amounts of ionic pollution, measured as conductivity and sulfates, into the waters of West Virginia in violation of their National Pollutant Discharge Elimination System (―NPDES) permits and their West Virginia Surface Mining Permits.On June 4, U.S. District Judge Robert C. Chambers ruled against the coal giant. The news attracted little attention in media coverage dedicated to the "war on coal."
Here is Judge Chambers' conclusion (pages 65-66):
In multiple ways, the chemical and the biological components of the aquatic ecosystems found in Laurel Creek and Robinson Fork have been significantly adversely affected by Defendants‘ discharges. The water chemistry of these streams has been dramatically altered, containing levels of ionic salts—measured as conductivity—, which are scientifically proven to be seriously detrimental to aquatic life. The biological characteristics of these streams have also been significantly injured, in that species diversity—and, in some areas, overall aquatic life abundance—is profoundly reduced. These receiving streams are unquestionably biologically impaired, in violation of West Virginia‘s narrative water quality standards, with current WVSCI scores falling well below the threshold score of 68.Alpha Natural Resources has said it will appeal the ruling and continue its destructive practices as long metallurgic coal commodity prices remain high. They released the following statement:
Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine. These West Virginia streams, like the reference streams used to formulate WVSCI and even like those used by Defendants‘ expert for comparison in this trial, were once thriving aquatic ecosystems. As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes—―functions in ecological science—that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses. Protecting these uses is the overriding purpose of West Virginia‘s water quality standards and the goal of the state‘s permit requirements.
The Court thus FINDS that Plaintiffs have established, by a preponderance of the evidence, that each Defendant has committed at least one violation of its permits by discharging into Laurel Creek or Robinson Fork high levels of ionic pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream‘s aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits. The Court also FINDS that Plaintiffs have established statutory jurisdiction under both the CWA and the SMCRA.
The decision here flies in the face of determinations made by all three branches of West Virginia state government-a resolution passed by the state legislature, Department of Environmental Protection policy, and a May 30 Supreme Court decision-all of which point to the fact that conductivity by itself has not been proven to cause loss of sensitive mayflies, and that further evidence is needed beyond a set of bad bug scores to prove violation of state water quality standards. The state Supreme Court spells it out clearly, ruling that there is not adequate agreement in the scientific community that conductivity causes harm to aquatic life. We fully intend to appeal this ruling and expect to see it reversed.The statement is instructive. With regulatory capture of all three branches of West Virginia state government by the coal industry, Alpha was expecting to ignore their permit requirements as merely suggested guidelines rather than anything remotely enforceable.
Randy Huffman, the head of the W.V. Department of Environmental Protection, gnashed his teeth, stamped his feet, and whirled like a dervish. From the West Virginia Gazette:
Basically what happened is Judge Chambers set a water quality standard, which is concerning. There is a process for setting water quality standards, and I think the role of the courts is to see if that process took place. I’m not even arguing the science right now. This is really about the process.It is all about process. The process is that the coal companies do whatever they want and Huffman's agency looks the other way. The advantage of narrative over numeric standards is that everything is a judgment call, all in the eye of the beholder. By the way, Randy, please argue the science. I could use a laugh.
Kudos to Judge Chambers for still believing the law applies to coal companies. That almost never happens, especially in the hollers of Appalachia. I especially liked his use of the past tense when it comes to water quality in West Virginia (i.e., "once thriving aquatic ecosystems," "once abundant clean water"). Sad but true.