Judge Allows Suit Challenging EPA’s Mountaintop Mining Guidance

Published March 11, 2011

A lawsuit against the U.S. Environmental Protection Agency charging EPA unlawfully changed its permitting process for mountaintop-removal coal mining can go forward, a federal judge ruled.

EPA Targets Large Coal Sector
Mountaintop-removal coal mining entails removing entire coal seams from mountaintops or ridgelines and then restoring the mountain or ridge to its original size and contour.

Plaintiffs in the case, National Mining Association v. Sheila Jackson, Administrator, EPA, say the agency issued guidance under the Clean Water Act that effectively halted coal mining activities, and this guidance was tantamount to regulation. Thus the EPA skirted its normal regulatory process, according to the National Mining Association (NMA).

EPA’s guidance covers permits for construction of fills, “which are required in all types of mining in Appalachia,” noted Carol Raulston, senior vice president for communications for NMA.

“Surface mining in Appalachia, which is the mining method that is primarily targeted by the guidance, accounts for approximately 11-14 percent of U.S. coal production, and plays a significant role in keeping coal America’s most affordable electricity provider,” Raulston said.

Environmental groups oppose the mountaintop-removal mining practice, arguing potential hazards to air, soil, and water.

“The difference between conventional mining and mountaintop-removal is conventional extracts coal from the mountain. The other kind blows it up,” said Larry Gibson, founder of Keeper of the Mountains Foundation in West Virginia. “Once you blow the mountain up, you can’t put it back.”

Initial Ruling Favors Plaintiffs
EPA sought to have Judge Reggie Walton of the U.S. District Court for the District of Columbia dismiss the case prior to trial. Walton ruled against the dismissal, however, and will hear the merits of the case. NMA officials are encouraged by Walton’s stated reasons for refusing to grant EPA’s dismissal request.

“The judge noted NMA appears to have the stronger argument, [that] EPA has acted outside its authority in using guidance in lieu of the regulatory process, which provides for public comment, etc., and has taken over the authority of the states to set water quality standards,” Raulston said.

Walton didn’t go so far as to say the EPA must immediately desist from restricting the mountaintop-removal coal mining. Instead, he explained, the plaintiffs had not yet proved the EPA had caused direct harm, so until the case was decided, the agency’s restrictions would stand.

“Yes, we are pleased with the judge’s ruling,” said Luke Popovich, vice president for external communications with NMA.

Plaintiffs Seek Expedited Decision
“We [have] asked for an expedited decision in this case, in view of the current impact of EPA’s guidance policy that continues to impose a de facto moratorium on new coal operations [and] discourage investment in coal mining.”

Popovich said NMA’s expedited review request would set a deadline of 60 days to file briefs with the court.

“EPA and the environmental groups oppose our request, rejecting a set timeline, preferring to discuss how to proceed with the lawsuit,” Popovich said, adding the judge has yet to decide on the request.

Cheryl K. Chumley ([email protected]) writes from northern Virginia.