Standing Our Ground. Joyce M. Barry

Watch (CRMW), began in 1998 as a direct response to the incursions of MTR on small communities in Boone County, West Virginia.³ The Ohio Valley Environmental Coalition (OVEC), based in Huntington, West Virginia, was formed in 1987 and has focused much of its energy on MTR and other coal industry abuses since the late 1990s.⁴ Regional organizations such as Appalachian Voices, based in Boone, North Carolina, began offering financial support to the budding anti-MTR movement in the latter part of this decade as well.

      I should also make clear that the anti-MTR movement does not focus exclusively on MTR, but serves as a general watchdog for Big Coal, monitoring its assaults on both the human and the nonhuman environments. For example, activists raise awareness about many industry practices deemed harmful as well as the impact of coal on human health, publicize information on coal containment issues, and counter the coal lobby in Washington. Judy Bonds frequently referred to mountaintop removal coal mining as a “poster child” for the detrimental effects of coal production and consumption and the need for the development of alternative energy sources.⁵ Sadly, Bonds, codirector of the CRMW, died of cancer in January 2011. This book is dedicated to her memory.

      In addition, this manuscript refers to the coal industry as Big Coal, rather than King Coal, because the former denotes one of the most powerful global industries, while King Coal suggests a company operating solely in the Appalachian region as in the older days of coal. In short, Big Coal is more encompassing and reflective of the current political-economic hegemony in relation to the production and consumption of coal. As Coal River Mountain Watch member Sarah Haltom says, the greatest challenge to those fighting MTR is that “we at the grassroots level are dealing with one of the biggest industries in the world that has so much money and power.”⁶ Despite the enormity of Big Coal’s influence, activists continue to work for environmental justice and sustainable coalfield communities.

      Mountaintop Removal Coal Mining and Big Coal in West Virginia

      Let’s consider the well-established facts of this coal extraction process bluntly designated “mountaintop removal.” This mechanized form of surface coal mining has existed for decades but became more prevalent in the 1990s because of an increased demand for electricity. MTR removes central Appalachian mountains away from coal seams through large-scale blasting and the use of heavy machinery that scoops up the coal, moving the waste into nearby containment sites called “valley fills.”⁷ Mountaintop removal differs from previous incarnations of surface mining, not only in that it concentrates on removing mountaintops, but also, and most notably, by the sheer scale of these operations. “The greatest earth-moving activity in the United States” is an apt description, considering the data assessing the scope of MTR: An average MTR site removes 600–800 feet of mountain, stripping roughly 10 miles, dumping the waste from this process into 12 valley fills that can be as large as 1,000 feet wide and a mile long.⁸ Figures from 2009 estimate that in Appalachia, 6,000 valley fills impacting 75,000 acres of streams have been approved.⁹ “Earth-moving,” indeed.

      According to scientists, MTR is causing irreparable damage to the central Appalachian landscape. On average, twenty-five hundred tons of explosives are used by technicians daily in Appalachian communities to blast the mountaintops, covering nearby streams with waste, throwing ecosystems out of balance, and causing increased flooding and the loss of biodiversity in the mountains.¹⁰ Area water supplies are contaminated by the use of valley fills, and also by the containment of toxic wastes from processing coal into nearby earthen dams called slurry ponds.¹¹ The impacts on human health are considerable. Scientists note an increase in respiratory and heart problems by citizens living in mining zones, including chronic pulmonary disorders and lung cancer.¹² Mortality rates are also elevated in areas surrounding surface mining locations.¹³ A most recent scientific study indicates that higher birth defect rates occur in mountaintop removal mining areas in Appalachia.¹⁴

      West Virgina Coal Counties

      Mountaintop removal coal mining was made possible by federal attempts to regulate strip-mining in the United States through the 1977 Surface Mining Control and Reclamation Act (SMCRA).¹⁵ The legislation permitted surface-mining as long as coal companies were able to reclaim and return mined areas to their “approximate original contour” (AOC) to repurpose the affected land into sites for commercial or residential use.¹⁶ However, a variance to the AOC rule was permissible if mountaintops were being removed. Because MTR mines cannot return mountains to their approximate original contour, coal companies receive an AOC variance as long as they demonstrate that the mined land will be used in a way “equal to or better than the way it was used” before mining operations began.¹⁷ The realities of reclaiming the land postmining are predictable: coal companies spend less than 1 percent of revenue on land reclamation, spraying hydroseed and coating rocks with a mix of “fertilizer, cellulose mulch, and seeds of nonnative grasses,” before moving on to the next operation.¹⁸ Economic development takes place on less than 5 percent of flattened areas that were once mountains.¹⁹ In addition to SMCRA, mountaintop removal coal mining is also supported by federal appeals courts, which have overturned two notable cases that sought to make MTR illegal, or more specifically, valley fills, which compromise Clean Water Act mandates.

      The first case, Bragg vs. Robertson, filed in 1998 by attorney Joe Lovett, charged the Army Corps of Engineers and the Department of Environmental Protection (DEP) with violating the Clean Water Act by issuing permits for valley fills at MTR operations.²⁰ The plaintiffs were local residents impacted by MTR, including Patricia Bragg, a housewife from Pie, West Virginia.²¹ In 1999, Federal District Judge John Haden ruled in favor of the plaintiffs, agreeing that valley fills violated the Clean Water Act. This decision sent shock waves into the coalfields of West Virginia, prompting state senators Robert Byrd and Jay Rockefeller to draft a rider to an appropriations bill nullifying portions of the ruling.²² Ultimately, Bragg vs. Robertson was appealed by coal companies, and in 2001the Fourth Circuit Court of Appeals overturned Haden’s decision by arguing that the case should be tried in state court, and citizens did not have the right to sue state regulators over a failure to enforce the Surface Mining Control and Reclamation Act.²³

      Similar litigation was pursued again by Joe Lovett in 2005 when a suit against the Army Corps of Engineers was filed on behalf of three state environmental groups: the Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy. This case charged the Army Corps of Engineers with improper permitting processes of MTR operations. In 2007, US District Court Judge Robert Chambers ruled in favor of the plaintiffs and cited the Corps with failure to meet the standards of the Clean Water Act and the National Environmental Policy Act.²⁴ This ruling required more-stringent environmental reviews of MTR, but was overturned in 2009 by the Fourth District Court of Appeals, which claimed that the US Army Corps of Engineers had the authority to issue Clean Water Act permits for MTR operations without extensive review.²⁵ In between these two legal actions by citizens and state environmental groups, the Bush administration sought to simplify the regulatory process of mountaintop removal by redefining the concept of waste to “fill” material, rendering the use of valley fills legally permissible in 2002.²⁶

      Currently, the Obama administration promises tighter enforcement of the Clean Water Act in regard to MTR and greater regulation of the mining permit process, but refuses to place a moratorium on mountaintop removal coal mining. In April 2010 the EPA issued the first comprehensive guidelines to protect communities from the impacts of MTR, “using the best available science and following the law.” The newly established “comprehensive guidance” set “clear benchmarks for preventing significant and irreversible damage to Appalachian watersheds at risk from mining activity.”²⁷ When presenting the regulatory framework, EPA director Lisa P. Jackson said, “The people of Appalachia shouldn’t have to choose between a clean, healthy environment in which to raise their families and the jobs they need to support them. That’s why the EPA is providing even greater clarity on the direction the agency is taking to confront pollution from mountaintop removal.”²⁸ Interestingly, like coal industry officials, the EPA often refers