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15-year Spruce mine litigation bends regulatory arc toward environmental justice

15-year Spruce mine litigation bends regulatory arc toward environmental justice

By Jim Hecker, Environmental Enforcement Project Director

It is not often that the trajectory of a single case provides a barometer for regulatory change, but Public Justice’s 15-year battle to stop a huge mountaintop removal mine in West Virginia does. When we first sued the U.S. Army Corps of Engineers to block the Spruce mine in 1998, mountaintop removal mining in Appalachia was increasing, and the Spruce mine was the largest such mine ever proposed, potentially leveling five square miles of Appalachian forest and filling over ten miles of headwater streams with mining waste. Government regulation of such mines was outrageously weak. The Corps used a streamlined general permit that assumed that the stream-filling had minimal effects, and the Environmental Protection Agency did not object.

On behalf of West Virginia citizens, and with our co-counsel Joe Lovett, Pat McGinley and Suzanne Weise, we won a preliminary injunction in 1999 that stopped the mine. The Corps later conceded that it would not win at trial and withdrew the permit. The mining company then revised its mine plan and applied for an individual permit. The shift from weak general permits to stronger individual permits started with the Spruce mine. We intensified the pressure by filing two long-running lawsuits against the general permit in 2003 and 2005, and succeeded in voiding it in West Virginia in 2009 and Kentucky this year (see the 6th Circuit’s recent decision, which I wrote about in my last blog post). Now almost all of these mines have to seek more stringent individual permits.

Until the Spruce mine, the Corps had never prepared an environmental impact statement (EIS) on any coal mine. As a result of our case, the Corps prepared two EISs — one on the Spruce mine and one on coal mining in Appalachia generally — which were completed in 2005-06. Those reports jump-started scientific work on the serious adverse effects the mines were having, including increased discharges of toxic selenium and dissolved salts, and a strong association between valley fills and biological impairment of downstream aquatic life.

When the Corps reissued the Spruce permit in 2007, we sued again, citing this harm, which led EPA to reverse course and veto the permit in 2011 — the first time EPA has ever vetoed a mining project. EPA’s 99-page veto decision summarized the compelling scientific evidence of harm that the Corps had been ignoring for years. In response, the mining industry and Appalachian states sued EPA, claiming it had no authority to veto a permit after it was issued, and a district judge agreed. But last month, a federal court of appeals reversed that decision and confirmed EPA’s post-permit “backstop authority” to protect the environment.

In these many ways, the Spruce mine case has been unusually productive in reforming government regulation of coal mining and identifying its adverse environmental effects.