Fri, Feb

Mining Damage Far from 'Minimal," Environmentalist Lawyers Tell Court

Damage to streams and forests from mountaintop removal coal mining is far from minimal, lawyers for environmental groups have told a federal appeals court.

Damage to streams and forests from mountaintop removal coal mining is far from minimal, lawyers for environmental groups have told a federal appeals court.

Lawyers for the Ohio Valley Environmental Coalition and other groups urged the 4th U.S. Circuit Court of Appeals to uphold a federal court ruling to make mining permits harder to get.

The Bush administration and the coal industry are appealing a series of rulings by U.S. District Judge Joseph R. Goodwin in Charleston.

Goodwin ruled that the U.S. Army Corps of Engineers could not authorize new mining jobs through a streamlined permit process meant for activities that cause minimal environmental harm.

In a brief filed last week, environmental group lawyers listed a variety of statistics about mountaintop removal damage from a federal government study of the issue: From 1992 to 2002, mountaintop removal and associated valley fills in Appalachia destroyed 1,208 miles of streams and 380,547 acres of forest. If past, present and future disturbance is combined, strip mining will impact more than 1.4 million acres of Appalachia. Since 2002 alone, 11 specific permits issued by the corps and challenged by environmentalists would destroy 26 miles of streams.


"It is difficult to imagine any agency, no matter how delusional, could conclude that this amount of destruction is minimal or insignificant," lawyers Jim Hecker and Joe Lovett wrote in their 61-page brief.

Since 2001, the Richmond, Va.-based 4th Circuit -- dubbed the nation's most conservative appeals court by The New York Times -- twice overturned rulings by the late U.S. District Judge Charles H. Haden II to force more strict regulation of mountaintop removal.

As with Haden's two rulings, the case before Goodwin deals with complicated questions about how the federal Clean Water Act applies to strip mining.

Specifically, Goodwin examined the corps' historic practice of approving valley fill waste piles through a Clean Water Act authorization called Nationwide Permit 21, or NWP 21.

Under the law, such permits are supposed to be used only to approve categories of activities that, cumulatively, would have minimal environmental effect.

In October 2003, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the Natural Resources Defense Council sued the corps over this practice. Lawyers for those groups argued that the corps could only approve valley fills through individual permits, which receive more detailed reviews.

In a July 8 ruling, Goodwin ruled that the corps had never concluded that valley fills caused only minimal adverse impacts. Without such a finding, the judge said, the corps cannot use NWP 21 for any mining permits.

The 4th Circuit has not scheduled oral arguments in the case.

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Source: Knight Ridder/Tribune Business News