Today the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, overturned a federal judge’s 2007 ruling to require greater environmental review of permits for mountaintop removal in West Virginia.
The decision, while devastating for Appalachia’s mountain communities and waterways, should be no shocker; this was the fourth time in eight years that the 4th Circuit Court has thrown out federal court rulings that sought to tighten mountaintop removal standards in West Virginia.
Charleston Gazette reporter Ken Ward, Jr. is closely following the story and its ramifications on his blog. The Associated Press also has the story.
The 2-1 majority opinion was written by Clinton-appointee Roger L. Gregory, the first African American justice to be named to the 4th Circuit Court. Gregory wrote:
In making this determination, we must first appreciate the statutory tightrope that the Corps walks in its permitting decisions. In passing the CWA, Congress aimed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2000). But, in passing SMCRA, Congress sought to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f)(2000).
As the dissenting voice, Judge M. Blane Michael from West Virginia concluded:
Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources.
Judge Gregory’s colossal oversight notwithstanding, the true verdict on mountaintop removal is already in: Since its launch in 1970 as a quick and dirty option to cheaply procure coal, over 470 mountains in central Appalachia have been blown to bits, a million and a half acres of hardwood forests have been destroyed, and over 1,200 miles of waterways had been sullied and jammed with mining fill. Blasting and coal dust has made life unbearable for anyone in the strip-mined areas. Wells have been busted and polluted with toxic waste. Because of the mechanization of above-ground mountaintop removal, the number of coal-mining jobs has plummeted as poverty rates soar in strip-mining areas.
Mountaintop removal has not only destroyed the natural heritage, it has ripped out the roots of the Appalachian culture and depopulated the historic mountain communities in the process. Part of that heritage is Black History Month founder Carter Woodson, who followed his brothers into the West Viriginia coal mines in the 1890s and served what he called his “six-year apprenticeship. The first mountaintop removal operation was launched in those same hollows of Fayette County, West Virginia, less than a century later.
As any judge in Richmond must know, our nation’s coal industry was born in 1746, in the Richmond area, with black slave labor. This included some of the first strip mining operations. Lacking the engineering technologies from Britain, the sheer force of the slave labor to function as human bulldozers stunned a visiting Scottish coal engineer. “At the will of their master,” he wrote in a letter, slaves at the coal mines in Virginia “could be seen removing as high as thirty feet of cover to obtain four feet of coal.”
In the spring of 1838, over forty black slaves and their two foremen were buried alive 700 feet below the earth when an explosion devastated the Black Health Coal Pit in Virginia. Undaunted, the president of a nearby coal mine took out an ad in a newspaper for more laborers. He appealed directly to slave owners to hire out their slaves. “There is no better please in this country where slave labor commands as much, where their general health is better, and where the treatment and contentment of the slaves are surpassed. It is true that within the last few years several disastrous accidents have occurred, but from the scientific and practical skill attracted to the mines, these accidents will be of rare occurrence, it is to be hoped.”
At the Dover Pits in Virginia in 1837, one visitor noted that slaves literally worked as mules to transport the coal to the main entry. He wrote: “Each man has a chain fastened by straps around his breast, which he hooks to the corve, and thus harnessed, and in a stooping posture, he drags his heavy load over the floor of rock.”
Slavery in the coal mines finally came to an end in the spring of 1865. When Union forces advanced into Confederate territory in Virginia, slaves climbed out of the coal pits at Dover in total desertion and fled for Richmond, bringing this ignominious first chapter of the coal industry to an end.
Ask Umbra on ditching dirty things
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Pompey Road Posted 7:05 am
13 Feb 2009
The eons of time and nature was good to us down here. It was not until we become civilized that destroying our habitat become fathomable or fashionable.
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Beth Wellington Posted 8:53 am
13 Feb 2009
http://bethwellington.blogspot.com/2009/01/how-will-rober ...
For a more detailed look at Roberts and the NMA, see:
http://bethwellington.blogspot.com/2005/08/reject-john-ro ...
As I noted in both articles, Benjamin Wittes observation in the May 2005 issue of The Atlantic that "the threat to basic environmental protections from conservative jurisprudence is broad-based and severe...By tightening doctrinal requirements that limit citizen access to the courts, judges greatly reduce the legal accountability of polluters."
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Erik Hoffner Posted 1:37 am
14 Feb 2009
No matter, this will just be fuel for the fire, b/c in the court of public opinion, coal operators CANNOT rebuild streams, and the watersheds are not equivalent to what they were pre-mining.
This loss will make the victories we see this year on MTR all the more sweet.
Erik
The Orion Grassroots Network: supporting grassroots groups working for conservation, justice, & more
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archigeek Posted 2:30 am
14 Feb 2009
The mellotron is your friend.
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amazingdrx Posted 3:04 am
14 Feb 2009
Every possible method for paying off judges must be tracked down and prosecuted. Including coal industry bribes funneled through friends and family members.
There should be lifetime prohibitions on judges being employed by or benefitting in any way from participants in cases they rule on.
Because of the widespread corruption of the juduciary branch by industry, judges must give up financial privacey and potential gain, sorry but it's the only way to stop the criminal conspiracy that is coal country industry/judicial partnership.
Ever heard of RICO and asset forfieture, justice department? Or is that only for drug enforcement?
Why investigate judges using the same draconian anti-constitutional methods that judges routinely uphold in their courts? Exactly, justice is fairness.
Once a few of them are thrown out of their homes without any court procedure for "suspiscion" under RICO, well just maybe the next judge approached by a coal industry crook will think twice about taking the cash.
Reopen Abu Graib for naked cheerleader coal country judge and industry crook pyramids? Wait a minute..that's going too far! Hehey.
http://amazngdrx.blogharbor.com/blog John Schneider, Northern Wisconsin
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amazingdrx Posted 3:15 am
14 Feb 2009
Make them eat their own products. Exclusively. Now that's brutal. No interogation needed.
http://amazngdrx.blogharbor.com/blog John Schneider, Northern Wisconsin
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Pompey Road Posted 4:10 am
14 Feb 2009
Alas, The clarion call for deregulation, the mantra of the neo conservtive since Reagan was mumbling about that shinning city on a hill.
As we initiate our crime scene investigation of who burned it down the trail leads back to the alzheimers mentality that threw the fuel on the economy and our regulatory agencies.
I don't need his medium to tell be who ingnited it. George Bush's complete abrogation of any regulation from the finiancial to food safety has let us with commodities for the new poor he created not fit for human consumption.
F.D.A. is but a shell of it's former self. Stipped of the funding needed to ensure our food safety by the consummate free market champion and "here it comes" the agri-corporate food lobby.
Deregulate from short selling and short loaning on risky derivatives to the Peanut and Jelly sandwich we feed out kids.
Only providence knows if we will survive the graft and incompetence loosed upon us over the last eight years.
The eons of time and nature was good to us down here. It was not until we become civilized that destroying our habitat become fathomable or fashionable.
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guade00 Posted 8:58 am
14 Feb 2009
This decision is evidence of the crap shoot that is litigating protection of the environment. Legislating environmental protection in clear and unequivocal terms is the only way we will ensure our ecology will be preserved.
Remember, the Supreme Court was one vote away from deciding that carbon was not a pollutant in Massachusetts v EPA. Had that decision fallen the other way, regulation of carbon emissions would have been set back a generation.
Much better to elect conscientious people than to bring suits before conservative courts.
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Wolverine Posted 5:09 am
15 Feb 2009
Instead of risking more of these defeats, a much better strategy is to strengthen the Clean Water Act to prohibit mountain top removal -- best option -- or at least place serious restrictions and regulations on it. If the legislation were properly drafted with explicit provisions, the courts would not be able to render immoral decisions like this one.
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lil1949 Posted 6:53 am
15 Feb 2009
The Ct. of Appeals has granted once again enoromous power to the Corps. The problem with that: Americans seen the competence, capability, and exectution of the Corp, as revealed through Katrina along with FEMA, and most recently with TVA. These agencies are no stronger or dedicated than the leaders and workers of those agencies. We haven't seen a great committment. They will perform no better than they are required to.
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Pompey Road Posted 11:34 am
15 Feb 2009
Rumor has it the Corp operated flood control Dam at Fishtrap Kentucky has stopped issuing permits for any kind of mining. They got caught last summer with two non permitted hollow fills on the property. I am looking for verification in print from the corps, none availabe at this time but a lot of griping by local coal corporation because they can't get anything permitted at Fishtrap Dam.
This will not effect the rest of the county or surrounding county's. Just the watershed area of the corps controlled area at Fishtrap. Probably just waiting for the decision of the 4th district before permitting any more strip or MTR's.
The eons of time and nature was good to us down here. It was not until we become civilized that destroying our habitat become fathomable or fashionable.
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Pompey Road Posted 7:09 am
16 Feb 2009
The only people who did more environmental damage to the Forest and Jungles of Vietnam were the men who flew the Operation Ranch Hands missions spraying a defoliant called Agent Orange. The Dioxin in the defoliant caused a host of problems to the U.S. and other countries soldiers including the South Vietnamese soldier who had to stay and live with the aftereffects of the stuff. An increase in cancer deaths and mutations, birth defects that will probably be going on for another 4 generations.
The D7E Bulldozers with the Rome Plow blade attachment we used were bad enough, sometimes in a 12 hour day we could clear 100-150 acres. Of course I was a draftee and really had no choice in the matter. I will never regret my service because of the lives we saved by clearing the vegetation back from the roads and base camps denying the enemy cover from which to launch ambush attacks on our personnel. The Rome Plow actually just cut the trees and brush off at a length of about 6" inches and did not allow for soil erosion except for in the monsoon season. Farmers would actually move in and raise crops on land that had formerly been denied to them. In actuality however it looked pretty devastating when we first got through clearing an area. I am hoping the area's of Vietnam we clear cut for force protection will heal.
I never witnessed this type of eco-destruction again until they started doing it in my back yard. The fact they are doing it on Corps controlled projects flying the same flag as we did in the 20th Combat Engineers may be some sort of Karma coming home to roost.
The long term study's of what we did over there are all over the internet and we did not blow off a hundred feet of overburden from a mountain and shove it into a valley covering up a fresh water stream. The place never recovered and we just cut the vegetation off level with the ground.
Any judge, Corps official, Federal or State Surface Mine Official that signs off on this type of Eco-Terrorism is either Coal Corporation bought and paid for or cut from the same cloth as the people who knowingly produced a product with Dioxin in it knowing it was one of the most deadly toxins known to man.
The eons of time and nature was good to us down here. It was not until we become civilized that destroying our habitat become fathomable or fashionable.
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