CPR Perspective: Mountaintop Removal

by Sandra Zellmer

Sandra Zellmer

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Sandra Zellmer is a Professor of Law and Director of Natural Resources Clinics at the Alexander Blewett III School of Law at the University of Montana.

Zellmer teaches in the Natural Resources and Environmental Law Clinic and related courses. Prior to joining the faculty of at the University of Montana, she was a Professor of Law at the University of Nebraska, where she taught torts, natural resources, water law, environmental law, and related courses.

She has published numerous articles and commentary on natural resources law, water conservation and use, and related topics, as well as several books, including Comparative Environmental Law and Natural Resources (Carolina 2013) and Natural Resources Law (West 3rd ed. 2012) (with Professors Laitos and Wood).

Zellmer was appointed as a member of the National Academy of Sciences-National Research Council Committee on Missouri River Recovery and Associated Sediment Management Issues (2008-2010).  In addition to being a Member Scholar of the Center for Progressive Reform, she is also a Senior Specialist (Roster Candidate) with the Fulbright Foreign Scholarship Board, a Member of the Resilience Alliance (an international multi-disciplinary research group that explores the dynamics of adaptive, complex systems), and a trustee of the Rocky Mountain Mineral Law Foundation. Between 2002-2004, Professor Zellmer served as the Chair of the Committee on Marine Resources for the American Bar Association Section on Environment, Energy and Resources, and as an advisor to the Council of Great Lakes Governors Water Working Group Task Force on Tribal/First Nation Treaties in the cotext of a proposed Great Lakes Water Compact, which was adopted in 2008.

Zellmer was a faculty member at the University of Toledo College of Law from 1998-2003, and has also been a visiting professor at Tulane, Drake, Lewis and Clark, and the University of Auckland law schools. Before she began teaching, Zellmer was a trial attorney for the U.S. Department of Justice Environment and Natural Resources Division, litigating public lands, wildlife and NEPA issues for the National Park Service, Forest Service, Fish and Wildlife Service and other federal agencies. She also practiced law at Faegre & Benson in Minneapolis, Minnesota, and clerked for the Honorable William W. Justice, U.S. District Court, Eastern District of Texas. Her publications cover a range of topics, including preemption, water and public lands management, wildlife and adaptive management, and have been published in journals such as Florida Law Review, Nebraska Law Review, and Houston Law Review.

Sandra Zellmer
Alexander Blewett III School of Law
32 Campus Drive
Missoula, MT 59812-6552
406.243.6653
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To date, more than 12 billion tons of Appalachian coal have been mined, primarily from West Virginia, Kentucky, North Carolina, Ohio, and Virginia.  Appalachian mines currently produce over one-third of the nation’s coal output.

In Appalachia, coal generally occurs in narrow seams separated by dirt and rock called "overburden" or spoil. In the past, miners removed coal by drilling passageways into the mountainsides, a technique that is both dangerous and labor-intensive. By the mid-1990s, a cheaper method of surface mining, called "mountaintop removal,” became prevalent throughout Appalachia. This technique involves placing explosives at various points around a mountaintop and blasting off 600 feet or more of earth. Miners then remove the loose rock and soil with draglines, which are gigantic machines, sometimes 20 stories tall, that can scoop 100 tons of so-called “overburden” at a time, allowing extraction of the exposed coal seams. 

Mountaintop removal is considered to be the most profitable mountaintop mining technique available, but it exacts a heavy toll in both environmental and social costs. The practice literally flattens mountains and transforms densely forested mountaintops to treeless terraces and plateaus. The displaced overburden becomes “valley fill,” which is pushed into valleys that typically contain headwater streams. As a result, 1,600 miles of streams have been permanently filled, producing dramatic effects on water quantity and water quality as well as more severe and more frequent flooding in the region. 

Residents are subjected to flash floods, polluted drinking water, lung-clogging dust, and the never-ending noise created by explosions at the mining operations, many of which operate 24 hours a day, seven days a week.

As with many industrial activities, mountaintop removal raises the apparent paradox of economic versus environmental benefits. But the two are not mutually exclusive.  See CPR Perspective on Jobs and the Environment, The Trade-off Myth: Fact and Fiction About the Employment Effects of Environmental Policy, By Eban Goodstein. Billions of dollars of coal have been extracted from the mountains of Appalachia, yet the industry has sent much of the wealth out-of-state, leaving little for local communities. Also, mountaintop mining requires fewer employees than other methods.    Fewer jobs mean the lack of a well-planned infrastructure for affected communities and an impoverished educational system. In Mingo County, West Virginia, the heart of the "Billion Dollar Coalfields," the median household income is $12,000 less than the national average. Residents are surrounded by empty homes and businesses and a decimated infrastructure.

What People Are Fighting About

The nation’s attention became focused on problems in the coalfields in 1972, when a huge waste impoundment at Buffalo Creek, West Virginia collapsed. Floodwaters destroyed 500 homes, killed 125 people, and left 4,000 homeless. With the ensuing media attention and pressure from residents, it was impossible for Congress to ignore the effects of coal mining and the enormous costs that the mining industry had externalized onto coalfield communities.

To counter the impacts of unregulated mining, Congress passed the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Through SMCRA, Congress recognized the need for coal as a source of energy but also the need to promote social and environmental justice in coalfield communities through a strict regulatory program that would hold coal companies accountable for their actions. The Office of Surface Mining Reclamation and Enforcement (OSM) in the Department of the Interior oversees the implementation of SMCRA. OSM has the authority to issue regulations, approve or disapprove state permit programs, and oversee state administration. 30 U.S.C. § 1211. While states may assume the authority to implement surface mining programs, provisions for federal oversight and for citizen participation were included in SMCRA to ensure against states' tendency to prioritize economic production over environmental protection. See CPR Perspective on the States' Role in Environmental Protection: The Debate Over Devolution.

Under SMCRA, mountaintop removal may be a legitimate mining technique, but only if it is subject to stringent regulation to protect valley streams and to reclaim mined areas to their approximate original structure and function. One means of protecting valley streams is a 1983 OSM regulation prohibiting coal companies from dumping excess spoil into streams or within 100 feet of streams. The 1983 regulation was rescinded by the Bush Administration in 2008 and replaced with one of the outgoing Administration’s many “midnight regulations” – a rule allowing dumping within the 100-foot buffer zone “if avoidance is not possible.” 73 Fed. Reg. 75814 (Dec. 12, 2008). President Obama’s Interior Secretary Ken Salazar has characterized the new regulation as “legally defective,” and has announced plans to return to the 1983 position. Lawsuits over the buffer zone requirement are described below.

Mountaintop removal is also regulated at the federal level by the Clean Water Act (CWA), which applies to a broad range of activities that affect water quality. The Act is implemented through two permitting programs: the National Pollutant Discharge Elimination System of § 402, administered by the U.S. Environmental Protection Agency (EPA), and the “dredge and fill” program of § 404, administered by the Corps of Engineers. The former governs waste by-products and other pollutants discharged into waters of the United States while the latter governs dredged materials and materials used to fill waters and wetlands to convert them to dry, developable land.  If an activity is regulated under § 404, it will not be required to obtain a § 402 permit. Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 77 USLW 4559 (June 22, 2009).  Both programs require individual dischargers to obtain permits, but certain categories of relatively innocuous activities can be covered by streamlined, general permits. The Corps is authorized to issue these “nationwide permits” (NWPs) under Section 404, but only for activities that "will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment." Mountaintop mining has been allowed under NWP-21, discussed below. Many states have assumed authority to implement CWA § 402 and SMCRA, but very few have assumed authority under CWA § 404. 

Together, the CWA and SMCRA include provisions that can protect communities affected by mountaintop removal. But neither of these statutes is being enforced vigorously enough to achieve their objectives.

Mountaintop Removal Litigation

The adequacy of state enforcement of SMCRA and of the Corps of Engineers’ implementation of section 404 has been challenged in several highly publicized lawsuits. In the first, Bragg, a resident of a former coal camp near Blair Mountain in Mingo County, West Virginia, alleged that the West Virginia Department of Environmental Protection (DEP) had engaged in a pattern of approving buffer zone variances, thereby unlawfully allowing the burial of countless streams. As noted above, the SMCRA regulations restricted state authorities from approving mining operations within 100 feet of a perennial stream unless they found no adverse effects on water quantity, quality, fish migration, or related environmental values.  After the Chief Judge of the Southern District of West Virginia found that valley fills clearly violated this standard, the Fourth Circuit Court of Appeals reversed without ruling on the merits of the complaint, based on the conclusion that West Virginia had sovereign immunity against the lawsuit. Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D.W. Va. 1999), rev'd sub nom. Bragg v. W. Va. Coal Ass'n, 248 F.3d 275 (4th Cir. 2001). 

A second case challenged the Corps of Engineers’ approval of a Martin County Coal Corporation project in Kentucky under NWP-21. A non-profit group, Kentuckians for the Commonwealth, challenged the Corps’ practice of permitting valley fills as a violation of the Corps’ own long-standing CWA regulation that explicitly forbade issuance of a §404 permit to dump material primarily to dispose of waste. Kentuckians for the Commonwealth v. Rivenburgh, 204 F.Supp.2d 27 (S.D.W.Va. 2002), rev’d, 317 F.3d 425 (4th Cir. 2003).   

In 2002, while the case was pending, the Corps issued a new rule that allowed the dumping of waste rock and dirt as “fill.”  As a result, “placement of overburden, slurry, or tailings or similar mining-related materials” requires only a 404 permit, rather than a 402 permit. 67 Fed. Reg. 31129, 31133 (May 9, 2002) (codified at 33 C.F.R. § 323.2(e)(2)). Arguably, the 2002 rule effects such a fundamental change in the permitting programs that it cannot properly be accomplished by rule, but instead requires amendment of the statute itself. Indeed, numerous bills to reverse the 2002 rule have been introduced in Congress (examples include The Clean Water Protection Act, introduced as H.R. 1310 in the 111th Congress and H.R. 2169 in the 110th Congress). However, the Fourth Circuit upheld the rule and concluded that the Corps properly exercised its discretion to issue a permit to Martin Coal. Since then, the Fourth Circuit has upheld several more permits issued by the Corps to other West Virginia mining companies. See Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177 (2009).

Administrative Action by the Agencies

Nationwide permits typically expire after five years, but in 2007 the Corps reissued NWP-21 for valley fills and fills from other types of surface coal mining. 72 Fed. Reg. 11092, 11117 (Mar. 12, 2007). Since then, the Obama Administration has wasted little time in changing the agencies’ approach to mountaintop removal. In March 2009, President Obama’s new EPA Administrator announced that the EPA would exert closer scrutiny over applications filed under NWP-21 to ensure that valley fills avoid significant degradation of the nation’s waters. In June 2009, the Corps reached a Memorandum of Understanding with the EPA and the Department of Interior, whereby it agreed to minimize the adverse consequences of mountaintop removal by requiring more stringent environmental reviews for future permit applications. The Corps also agreed to issue a public notice of its intent to preclude the use of NWP-21 for the discharge of valley fills in Appalachia. For its part, the EPA agreed to strengthen review of permits issued under § 404 and to bolster coordination with states on both § 402 permits for polluted discharges from valley fills and state water quality certifications for mining operations. Finally, Interior agreed to evaluate how its Office of Surface Mining can more effectively oversee state permitting and enforcement activities under SMCRA. MOU Among the U.S. Department of the Army, U.S. Department of the Interior, and U.S. Environmental Protection Agency Implementing the Interagency Action Plan on Appalachian Surface Coal Mining (June 11, 2009), available here.

A Progressive Perspective

The initiatives begun by the Obama Administration promise to correct some of the more egregious practices allowed by previous federal policies on mountaintop removal and valley fills.  Yet they do not go far enough. The lawsuits described above reveal at least three fundamental weaknesses in the regulatory framework governing mountaintop removal. First, the Bragg decision, by according sovereign immunity to states, seriously undermines the important federal policy of ensuring protection for all citizens notwithstanding individual states’ demonstrated tendency to prioritize economic activity over environmental, health, and safety protection. Because regulatory authority under SMCRA is delegated to many states in the Appalachian region, residents in a region dominated by a single industrial activity, such as coal mining, are left with no effective recourse for violations of federal law. Congress should ensure that people affected by mountaintop removal have a meaningful role in the decisionmaking process and recourse to the courts to ensure adequate enforcement.

Second, the Corps’ new interpretation of “fill” blurs the long-standing and principled jurisdictional line between waste disposal activities covered by §402 (the EPA’s permit program) and fill materials covered by §404. Allowing regulation of mountaintop removal under §404 side-steps readily enforceable, technology-based standards otherwise required under §402. Discharges from mining should only be allowed if they are subject to specific treatment requirements included in an individual § 402 permit issued by the EPA. Allowing high volume, high impact discharges like valley fills to evade the more stringent requirements of § 402 simply because they cause so much rock and rubble to fall into a stream that its bottom is elevated or even obliterated is a perverse result that runs completely counter to Congress’s intent to protect the integrity of the nation’s waters through the CWA’s permitting programs. Finally, authorizing valley fills under §404 makes them more likely to be covered through a blanket nationwide approval like NWP-21. As the 2009 MOU apparently recognizes, NWP-21 represents a choice that disregards health, safety, and environmental values and seriously impairs the opportunity for public participation. Moreover, the Corps’ approval of mountaintop removal through NWP-21 exceeds the Corps’ authority under the law. A general permit may be issued only if the category of activities has minimal adverse effects, both individually and cumulatively. The Corps’ own rules state that these permits may be used only for activities that are not controversial and that provoke little or no public comment. Mountaintop removal fits none of these criteria. The assertion that the placement of mining waste into the nation's waters has minimal adverse effects is simply not credible. The permit in dispute in the Kentuckians case alone allowed Martin Coal to place its overburden in 27 valleys and to fill in 6.3 miles of streams. According to the federal government’s own Environmental Impact Statement, mountaintop mining is destroying Appalachian forests and streams. The Corps itself agreed that valley fills have the potential to cause significant environmental effects, but it claimed that mitigation and after-the-fact monitoring minimize the effects. Several courts have found, however, that these measures routinely prove unsuccessful, and the Corps conceded that there is a great deal of uncertainty with respect to the efficacy of wetland and stream mitigation to restore ecological function. Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177, 218-223, 225 (4th Cir. 2009) (Michael, J., dissenting in part).

In Sum

If mountaintop removal continues at its present pace and form, Appalachian residents will continue to suffer from higher unemployment, an increased incidence of flash flooding, polluted drinking water, plumes of dust particles, and constant noise, day and night. They and all of the nation’s residents will suffer the obliteration of the ecological treasures of Appalachia. Individual permitting processes for mountaintop removal, along with strict enforcement by federal and state governments and private citizens, are necessary to prevent social and environmental destruction. See CPR Perspective on Environmental Enforcement: What Works?, by Joel Mintz and Clifford Rechtschaffen.

The authorization of CWA § 404 permitting for waste disposal extends well beyond Appalachia and mountaintop removal operations. For twenty-five years, the Corps had asserted jurisdiction only over the use of fill materials for development purposes, leaving the regulation of waste to the EPA. Since 2002, however, the Corps has issued § 404 permits for an array of activities that result in the discharge of wastes into the nation’s waterways.  See, e.g., Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 77 USLW 4559 (June 22, 2009) (upholding a § 404 permit for a gold mine’s polluted slurry that would fill an entire sub-alpine lake). The expanded use of § 404 avoids the application of the stringent technology-based standards of § 402 and leads to the expanded use of NWPs that circumvent individual, in-depth analysis and timely and effective public participation.

The extension of § 404 jurisdiction and the concomitant reduction of § 402 jurisdiction, as well as the Corps’ belief that these tremendously destructive activities entail only “minimal adverse effects” and can therefore be permitted by nationwide permits, are untenable and should be reversed. In addition, EPA should take an active role in protecting the nation’s waters from valley fills, and OSM should reinstate its previous buffer-zone rule to protect streams affected by valley fills and exercise strong oversight over states that fail to implement SMCRA’s requirements.

Related Publications by CPR Member Scholars:

• William Andreen and Shana Campbell Jones, The Clean Water Act: A Blueprint for Reform (CPR White Paper #802) (2008)
• Andreen, Water Quality Today--Has The Clean Water Act Been a Success?, 55 Ala. L. Rev. 537 (2004)
• William W. Buzbee, Robert L. Glicksman and Sidney A. Shapiro, Regulatory Underkill: The Bush Administration's Insidious Dismantling of Public Health and Environmental Protections (CPR White Paper #503) (2005)
• George Cameron Coggins and Robert L. Glicksman, Environmental Regulation in Public Natural Resources Law § 19:25 (Nationwide Dredge and Fill Permits) (2009)
• Joel Mintz, Treading Water: A Preliminary Assessment of EPA Enforcement During the Bush II Administration, 34 Envt'l. L. Rptr. 10912 (2005)

Other Publications

• Patrick C. McGinley, From Pick and Shovel to Mountaintop Removal: Environmental Injustice in the Appalachian Coalfields, 34 Envtl. L. 21 (2004)
• Robert E. Beck, Water and Coal Mining In Appalachia: Applying the Surface Mining Control and Reclamation Act of 1977 and the Clean Water Act, 106 W.Va. L. Rev. 629 (2004)
• Mindy Persofsky, Who is Protecting Our Nation's Valleys and Streams From the Grave Effects of Mountaintop Mining? Casenote: Kentuckians For The Commonwealth, Inc. v. Rivenburgh, 22 Temp. Envtl. L. & Tech. J. 219 (2004)
• Paul A. Duffy, How Filled Was My Valley: Continuing the Debate on Disposal Impacts, 17-WTR Nat. Resources & Env't 143 (2003)