Appeals court overturns new mountaintop mine rules

CHARLESTON, W.Va. -- A federal appeals court overturned a ruling Friday requiring more extensive environmental reviews of mountaintop removal, a form of coal mining in Appalachia that blasts away whole peaks.

A panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled 2-1 that the U.S. Army Corps of Engineers has the authority to issue Clean Water Act permits for mountaintop removal coal mines without more extensive reviews. The court also overturned a related ruling that using ponds to remove sediment from streams at mountaintop mines violates the Clean Water Act.

The rulings are a blow to environmentalists and coalfield neighbors who oppose the highly efficient but destructive practice that exposes thin, shallow coal seams. Rocks, dirt and other debris typically are dumped into valleys containing intermittent streams, which is how clean water rules become involved.

The decision is a win for mine operators. The coal industry says most of the nearly 130 million tons of coal produced at mountaintop mines in Appalachia goes to generate electricity for 24.7 million U.S. customers. Moreover, mountaintop mines employ some 14,000 people across West Virginia, Virginia, Kentucky and Tennessee.

Mountaintop permits have slowed to a trickle since March 2007, when the corps was ordered by U.S. District Judge Chuck Chambers to rescind several permits. It was Chambers' ruling that the appeals court overturned.

"It's Friday the 13th, what do you expect?" said Janet Keating, executive director of the Ohio Valley Environmental Coalition, the lead challenger of the corps' permits. "We are deeply disappointed."

A half dozen environmental groups, including OVEC and the Sierra Club, blasted the ruling, saying in a news release it will allow up to 90 more mountaintop mines to devastate the region. Already, the groups say more than 1,200 miles of streams have been buried.

"Today the coal industry -- aided by the Bush administration -- is allowing our water to be poisoned," Judy Bonds of Coal River Mountain Watch, said in a statement. "Tomorrow it will be the East Coast's water supply as the mining discharges will reach downstream water sources."

The corps is reviewing the decision, spokeswoman Peggy Noel said.

"We'll follow the guidance that the court tells us to do," Noel said. "Public health and safety is a top priority of the corps."

The ruling vacates Chambers' order rescinding four permits issued to Richmond, Va.-based Massey Energy Co., along with an injunction barring Massey from using the permits and the decision involving the settling ponds.

"Even though we have not had an opportunity to fully review the 4th Circuit's decision, we are pleased with the fact it has rejected Judge Chambers' previous ruling," Massey spokesman Jeff Gillenwater said in an e-mail. "This should put an end to much of the uncertainty regarding the issuance of surface mine permits."

Massey, the nation's fourth-largest coal producer based on revenue, and other mine operators have been bracing for the better part of two years for potential production cuts stemming from an inability to get permits.

West Virginia Coal Association President Bill Raney praised the decision, saying it brings stability to the industry at a time when it faces sluggish demand due to the weak economy.

"It's so reassuring to have the stability of the appeals court that recognizes the professionalism of the Corps of Engineers," Raney said. "They really protected the jobs of the miners."

National Mining Association spokesman Luke Popovich called the ruling "potentially very significant economic news and very good news for the region."

Coal companies have been cutting production, closing mines and laying off workers across the country amid anemic demand, particularly for utility coal overseas and coking coal used to fire steel mill blast furnaces. At least 1,310 jobs have been trimmed at various Appalachian mines in recent weeks.

Meanwhile, American consumers are facing higher electric rates as 2009 coal delivery contracts take effect that were signed last year, at a time when prices had risen as much as double from the year before.

"We think this could easily free up more supply," Popovich said. That could help bring down fuel costs for electricity.