<note from SC attorney Aaron Isherwood - we need letters to editors, online comments, etc. about this important victory in the MTR battles>
Hey gang,
Many comments have already been posted online reacting to Ken Ward's story about our TRO. From what I've seen, a lot are angry rants.
It would be great if folks could submit comments. Naturally, we want to avoid the "jobs vs the envt" frame, and instead advocate solutions (like the Coal River Wind project).
Aaron
Aaron Isherwood Senior Staff Attorney Sierra Club Environmental Law Program 85 Second Street, 2d Floor San Francisco, CA 94105-3441 Phone: (415) 977-5680 Fax: (415) 977-5793 Jim Sconyers jim_scon@yahoo.com 603.969.6712
Remember: Mother Nature bats last.
----- Forwarded Message ---- From: "aaron.isherwood@sierraclub.org" aaron.isherwood@sierraclub.org To: Jim Sconyers jim_scon@yahoo.com; regina1936@verizon.net; Bill DePaulo william.depaulo@gmail.com Cc: bpricesc@earthlink.net; bill.mccabe@sierraclub.org; vafw@naxs.net; oliverbernstein@austin.rr.com Sent: Tuesday, August 12, 2008 3:36:27 PM Subject: Hobet 22 lawsuit - good news!
Dear Jim, Regina and Bill:
Sorry for the delay in giving you a report - yesterday was more than a little crazy - but in case you haven't heard, some good news in our case...!
This will be tricky because of the threatened union worker lay-offs. Oliver Bernstein with our media team is working with Bill Price and our allies on a press strategy.
Also, thought you'd enjoy the article at the bottom - from Virginia.
Best,
Aaron
Aaron Isherwood Senior Staff Attorney Sierra Club Environmental Law Program 85 Second Street, 2d Floor San Francisco, CA 94105-3441 Phone: (415) 977-5680 Fax: (415) 977-5793
CONFIDENTIAL LEGAL COMMUNICATION/WORK PRODUCT This e-mail may contain privileged and confidential attorney-client communications and/or attorney work product. If you receive this e-mail inadvertently, please reply to the sender and delete all versions on your system. Thank you.
http://www.wvgazette.com/News/200808111074
Judge blocks Hobet mine expansion A federal judge on Monday temporarily blocked a permit to expand the Hobet 21 mountaintop removal mine along the Boone-Lincoln county line. By Ken Ward Jr. Staff writer A federal judge on Monday temporarily blocked a permit to expand the Hobet 21 mountaintop removal mine along the Boone-Lincoln county line. U.S. District Judge Robert C. Chambers issued a temporary retraining order requested by the Ohio Valley Environmental Coalition and other groups. Chambers blocked the permit to allow more time to consider evidence and legal arguments in the latest federal court lawsuit over mountaintop removal coal mining. The judge set a hearing for Aug. 20 to consider whether his ruling should be extended to a longer preliminary injunction. "These are serious and substantial questions and this court is required to consider that," Chambers said during a telephone hearing Monday afternoon. Late last week, environmental group lawyers filed a new suit to try to block the Hobet expansion project, known as Hobet 22. They challenged a U.S. Army Corps of Engineers permit issued under the federal Clean Water Act, arguing that the corps did not properly consider the mine's impacts or give the public adequate opportunities to comment on the proposal. Corps officials held a 30-day comment period on the mine in late 2006. But key parts of the mine plan - especially details of how Hobet will mitigate the loss of streams harmed by the operation - were not available until a year later. A final version of that mitigation plan was not available until March 2008. "Until the permit is issued, no one knows what is going on," said Joe Lovett, a lawyer for the citizen groups. "The public doesn't have a meaningful opportunity to raise concerns." Corps attorney Ann Navaro told Chambers that the Hobet permit is different from other agency mining authorizations that have been challenged in court. Hobet has not proposed traditional valley fills that typically bury streams at strip-mining operations. A federal judge on Monday temporarily blocked a permit to expand the Hobet 21 mountaintop removal mine along the Boone-Lincoln county line. U.S. District Judge Robert C. Chambers issued a temporary retraining order requested by the Ohio Valley Environmental Coalition and other groups. Chambers blocked the permit to allow more time to consider evidence and legal arguments in the latest federal court lawsuit over mountaintop removal coal mining. The judge set a hearing for Aug. 20 to consider whether his ruling should be extended to a longer preliminary injunction. "These are serious and substantial questions and this court is required to consider that," Chambers said during a telephone hearing Monday afternoon. Late last week, environmental group lawyers filed a new suit to try to block the Hobet expansion project, known as Hobet 22. They challenged a U.S. Army Corps of Engineers permit issued under the federal Clean Water Act, arguing that the corps did not properly consider the mine's impacts or give the public adequate opportunities to comment on the proposal. Corps officials held a 30-day comment period on the mine in late 2006. But key parts of the mine plan - especially details of how Hobet will mitigate the loss of streams harmed by the operation - were not available until a year later. A final version of that mitigation plan was not available until March 2008. "Until the permit is issued, no one knows what is going on," said Joe Lovett, a lawyer for the citizen groups. "The public doesn't have a meaningful opportunity to raise concerns." Corps attorney Ann Navaro told Chambers that the Hobet permit is different from other agency mining authorizations that have been challenged in court. Hobet has not proposed traditional valley fills that typically bury streams at strip-mining operations. The mine would generate about 30.5 million cubic yards of waste rock and dirt. Most of it would be returned to the mined area, to restore it to its approximate original contour. About 3 million cubic yards of excess rock and dirt would be dumped into existing valley fills on adjacent permits. But the Hobet 22 operation would still "permanently eliminate" more than 4.2 miles of streams, according to corps permit documents. Company officials proposed to mitigate this damage with a plan to "reconstruct" and "create" streams once the mining is done. In a previous case, Chambers has found little evidence that such plans work. Hobet lawyer Bob McLusky told Chambers that Hobet the mining complex involved is the largest United Mine Workers operation in West Virginia. McLusky said that up to 300 UMW jobs could be at stake, but did not provide details as to how long mining could continue without the new permit. "I can't tell you there will be people laid off in 10 days, but at some point in an injunction procedure, people will lose their jobs," McLusky said. A UMW lawyer noted a formal appearance at Monday's hearing, but did not otherwise speak. Corps permit records say that Hobet 22 would employ 75 workers, and mine 2.4 million tons of coal over a three-year period. McLusky also told Chambers that "significant work" has already been done at the site, under a state mining permit issued in June 2007 and the corps permit issued Aug. 1. "This site is already substantially disturbed," McLusky said. "You can't un-ring the bell here." August 12, 2008 Judge blocks Hobet mine expansion A federal judge on Monday temporarily blocked a permit to expand the Hobet 21 mountaintop removal mine along the Boone-Lincoln county line.
The mine would generate about 30.5 million cubic yards of waste rock and dirt. Most of it would be returned to the mined area, to restore it to its approximate original contour. About 3 million cubic yards of excess rock and dirt would be dumped into existing valley fills on adjacent permits. But the Hobet 22 operation would still "permanently eliminate" more than 4.2 miles of streams, according to corps permit documents. Company officials proposed to mitigate this damage with a plan to "reconstruct" and "create" streams once the mining is done. In a previous case, Chambers has found little evidence that such plans work. Hobet lawyer Bob McLusky told Chambers that Hobet the mining complex involved is the largest United Mine Workers operation in West Virginia. McLusky said that up to 300 UMW jobs could be at stake, but did not provide details as to how long mining could continue without the new permit. "I can't tell you there will be people laid off in 10 days, but at some point in an injunction procedure, people will lose their jobs," McLusky said. A UMW lawyer noted a formal appearance at Monday's hearing, but did not otherwise speak. Corps permit records say that Hobet 22 would employ 75 workers, and mine 2.4 million tons of coal over a three-year period. McLusky also told Chambers that "significant work" has already been done at the site, under a state mining permit issued in June 2007 and the corps permit issued Aug. 1. "This site is already substantially disturbed," McLusky said. "You can't un-ring the bell here." Reach Ken Ward Jr. at kw...@wvgazette.comor 348-1702.
August 11, 2008 Bristol Herald Courier An End To Mountaintop Removal Mining? By Debra McCown
ABINGDON, Va. – Mountaintop removal could be ended by as early as next year, said a leader in an environmental group working to halt the destructive mining practices.
“Now there is an increasingly powerful and vocal national movement to stop mountaintop removal,” said Matt Wasson, an ecologist and director of programs for Appalachian Voices. “I’m saying we’re going to have it stopped by the end of next year ... the end of 2009.”
“Mountaintop removal” is, to some, a controversial term. It refers to the blasting away of mountain ridges to get to the coal underneath, a process that evolved with technological advancements over the decades from traditional contour mining.
What makes this type of mining cost-effective is a valley-fill permit, which allows the overburden – dirt and rock removed to expose the coal – to be dumped into adjacent valleys.
The practice has been criticized as degrading to the environment and hazardous to nearby residents, who must endure the noise, dust and danger of blasting on the mountains above their homes, as well as flooding when stream courses are changed.
“Mountaintop removal mining is a national disgrace,” said Aaron Isherwood, staff attorney for the Sierra Club. “If the American people knew what was happening in Appalachia, I feel certain that they would demand an end to this practice.”
Coal producers argue that their industry is one of the nation’s most regulated – and as long as they follow regulations, they should be allowed to extract the fuel that fires half of the nation’s electricity generation.
Wasson pins his hopes on two distinct possibilities – a pending U.S. 4th Circuit Court of Appeals ruling on a West Virginia court case and the election of a new U.S. president who will take office in January.
Other activists agree that both have the potential to put a stop to the issuance of new permits for mountaintop removal mining.
“I think if we get a new president, It’ll be stopped, and I guess we’re going to get a new president by next year,” said Joe Lovett, director of the Appalachian Center for the Economy and the Environment.
Legal ramifications
With a long list of plaintiffs and defendants, the West Virginia lawsuit seeks to put a stop to valley-fill permits, which are issued by the U.S. Army Corps of Engineers.
Central to the issue is the question of whether the discard from mining should be considered waste under the 1977 Clean Water Act, which limits the release of pollutants into streams.
“I don’t know what will happen in the future,” Lovett said. “I can tell you we haven’t had any significant permits issued since March 2007 because the court found that the federal government was illegally issuing permits at that time.”
When a federal court in West Virginia issued an order rescinding permits in question, the permits were sent back to the Corps. The Corps of Engineers contested the ruling in the Richmond appellate court. The case also includes an issue related to sediment discharge.
Lovett said three different decisions on valley fills have been overturned by the 4th Circuit since 2000, “but we’re much more optimistic this time.”
He said if the appeals court upholds the decision, the federal government, which he said loosened its regulations during the current administration, would have to completely change its permitting processes.
“How can they approve the filling of hundreds and a couple thousand miles of mountain streams in this region and say that’s not significantly degrading the water?”
Lovett said. “All I can say is the Corps hasn’t been doing its job up until now.”
He said in addition to the West Virginia case, which will also affect Virginia, legal action also is under way in Kentucky, and the proposed Ison Rock Ridge mining permit in Wise County, Va., is being watched closely as it moves through the regulatory process, as is the court ruling expected soon in a lawsuit over logging on the site.
Andrew Ames, spokesman for the U.S. Department of Justice’s Environment and Natural Resources Division, said the four permits remanded back to the Corps were not stopped; they were just sent back for review.
“I wouldn’t be able to comment on what we think the 4th Circuit’s going to rule, but that appeal and those four individual permits do not affect the Army Corps’ ability to issue further individual permits, and they have been doing that,” Ames said. “The plaintiffs again have filed suit over those, and that is still in litigation.”
Surface mining’s future
Mark Taylor, chief of the energy resource section in the regulatory branch for the Corps, said several valley-fill projects have been authorized by his Huntington, W.Va., district since the West Virginia ruling.
“Have we issued any coal mining permits since the ruling? Yes, we have. Do we feel it complies with the judge’s ruling? Yes, we do,” Taylor said. “In the regulatory department, we follow the rules and regulations as passed on to us by Congress and ... the judges. … Whatever they decide is what we will do. We are neither for projects nor against projects.”
David Spears, policy manager for the Virginia Department of Mines, Minerals and Energy, said even a ruling from the 4th Circuit favorable to the plaintiffs would not stop all surface mining here.
“They would still be able to do traditional surface mining, which is what we call contour surface mining, where they mine around the mountains and reclaim the land when they’re done,” Spears said. “They put the material back up into the mined area.”
Barbara Altizer, executive director of the Eastern Coal Council, said if surface mining were stopped, the effect would be catastrophic for the region.
“It would be devastating, and not just to Southwest Virginia counties. It would impact Washington County, it would impact the Tri-Cities area. The coal dollar flows in lots of directions,” she said. “There’s so many things that coal is used for.”
She said coal has helped the entire nation to grow and prosper, and, along with providing relatively inexpensive energy, it could be the key to future energy independence with the help of technology.
She said the extraction of coal by surface mining also has tangible local benefits.
“When you live in a mountainous region, sometimes you appreciate the flat land,” she said. “We’ve got airports. We’ve got housing developments. We’ve got shopping centers [because of land flattened by mining].”
Jim Norvelle, spokesman for Dominion Virginia Power, which is building a new coal-fired power plant in Wise County, said he would not speculate on the future of valley-fill permits. But, he said, the plant will be able to use a wide variety of fuels.
“One of the reasons we pushed so hard for circulating fluidized bed clean-coal technology for this power station is its ability to burn a wide variety of fuels,” Norvelle said. “We will be able to design our fuel plan around a wide range of coal, waste coal and biomass, and can make adjustments as the market for those fuels changes.”
Activists say that while opposition to mountaintop removal is reaching critical mass, it will ultimately take action by a new administration in Washington to clarify Clean Water Act regulations to define mine spoil as waste or prohibit mountaintop removal outright.
“The next administration could clarify the federal regulations and make it clear that mountaintop removal mining was never foreseen when the surface mining laws were passed and is not permitted under those laws,” Lovett said.
“We can fight with agencies all we want, but it’s going to take some will in Washington to get things done.” dmccown@bristolnews.com| (276) 791-0701