Under Ohio Valley, the Army Corps of Engineers can issue what was previously thought to be an exceptional “general” or “nationwide” permit, rather than standard “individual” permits, to mining companies that want to dump removed mountaintops into valley streams. Unlike the standard permits, which safeguard public health and the environment by subjecting dumps from each individual project to public notice, public comment and particularized approval, the general permit allows dumping from all mountaintop removal projects country-wide without notice or comment. The problem with Ohio Valley is that while the Clean Water Act exclusively reserves the fast-track general permit for categories of projects with only “minimal environment effects,” the mountaintop dumping condoned by the Fourth Circuit already jeopardizes upwards of 25 miles of vulnerable valley streams, and it won’t stop there. Not exactly “minimal effects.” Dissenting from the full court’s refusal to re-examine the case, Judge Robert King accused the three-judge panel of “rendering [the pertinent provision of the Clean Water Act] a nullity” and observed:
[T]his case is of exceptional importance to the nation and, in particular, to the states in the Appalachian region. The Appalachian mountains, the oldest mountain chain in the world, are one of the nation's richest, most diverse, and most delicate ecosystems, an ecosystem that the mountaintop coal mining authorized by the Corps' general permit may irrevocably damage or destroy.Unfortunately, Ohio Valley was not the first Fourth Circuit decision reversing a West Virginia district court opinion that enforced legal restrictions on mountaintop removal. Nor was it the second. It was the third. Arch-conservative Bush I appointees J. Michael Luttig (a Bush II Supreme Court short-lister) and Paul Niemeyer were part of the three-judge panel in each case, and in each case a third Republican-appointed judge joined them.
In the first of these cases, Bragg v. West Virginia Coal Association, 248 F.3d 275 (4th Cir. 2001), Luttig, Niemeyer and Karen Williams (another Bush II Supreme Court short-lister) ruled that the doctrine of state sovereign immunity completely barred West Virginia citizens from going to federal court to challenge the state’s decision to issue mountaintop removal permits that violated federal law. The ruling has come under withering criticism for, among other things, flouting the plain language of the Surface Mining Control and Reclamation Act, overlooking a key contrary opinion from the Interior Department and ignoring both circuit and Supreme Court precedent. In the second case, Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003), Luttig, Niemeyer and Reagan appointee Clyde Hamilton overturned the district court’s finding that the Clean Water Act prohibited the Army Corp of Engineers from continuing to grant permits that allowed mountaintop removal debris to be dumped directly into valley streams.
Mountaintop removal mining has had devastating effects, not only on the natural environment, but also on nearby communities. As one West Virginia newspaper reported, “fill in valleys leach poisonous heavy metals into the water supply,” which in high enough concentrations “are poisonous to humans.” Children in the vicinity of a Pine Mountain, Kentucky mine “suffer from an alarmingly high rate of nausea, diarrhea, vomiting, and shortness of breath – symptoms of something called blue baby syndrome – that can be traced back to sedimentation and dissolved minerals that have drained from mine sites into nearby streams.” In the West Virginia town of Rock Creek, where “coal dust settles like pollen” over the elementary school playground, “fifteen to twenty students went home sick every day because of asthma problems, severe headaches, blisters in their mouths, constant runny noses, and nausea.” The long term health implications of mountaintop removal mining may be even worse, and include liver, kidney, and spleen failure, bone damage, and cancers of the digestive track. Read more here.
It is for these reasons that the practice of mountaintop removal is subject to rather rigorous legal restrictions. And it is for these reasons that the almost willful non-enforcement of such restrictions by certain Fourth Circuit judges raises grave concerns for Appalachian ecosystems and communities.
Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005), reh’g en banc denied, 437 F.3d 421 (4th Cir. 2006)