Damage in Appalachia Trickles From Top

WASHINGTON —  A few years ago, the residents of Appalachia’s hollows started fighting in court to rein in the practice of mountaintop mining, which they argued was ravaging the region’s forests, streams and wildlife, and leveling its rugged mountain peaks.

They say it has been an exercise in frustration -- and one in which an administration friendly to mining interests has changed the rules along the way.

In one case, residents argued that the mining companies were violating the Clean Water Act by dumping the “overburden” -- leftover rock and soil -- into streams. Then, in 2002, the Bush administration rewrote a Clean Water Act regulation so that it explicitly allowed the companies’ practice.

In another case, pending in state court, West Virginians argued that the companies had violated the Surface Mining Act, which banned mining within 100 feet of a stream. This month, the administration proposed to “clarify” that rule to make it legal for companies to mine along streams, and to heap leftover rock and soil into them, as long as they dumped the smallest amount possible.

“We find legitimate ways to fight this destructive type of mining, we present our case to the courts, and in the meantime the Bush administration goes behind our backs and changes these laws,” said Judy Bonds, an organizer for Coal River Watch, an environmental group in Whiteville, W.Va. “It shows contempt for the people who live in these communities and don’t want their lives destroyed by the coal industry.”

In search of Appalachia’s cleaner-burning coal, companies use massive machines to shear off tops of mountains, extract the coal, and pile leftover rock and soil in valleys. After two decades, more than 700 miles of streams have been buried, according to a recent federal study. Bald, flat plateaus remain where steep, tree-covered peaks once covered much of Appalachia.

Administration officials support mountaintop removal mining as an important source of coal to fire power plants in the region.

“Our responsibility under the law is to strike the proper balance between the production of coal that is essential to the nation’s economic and social well-being and protection of the environment,” said Jeffrey Jarrett, director of the Interior Department’s Office of Surface Mining Reclamation and Enforcement.

He and other administration officials stress that the recent regulatory changes merely allow the continuation of a well-established technique. “It is not backsliding from 20 years of practice,” Jarrett said.

The Clean Water Act and the Surface Mining Act were not intended to prohibit mountaintop mining, even if some judges have ruled differently, he said.

Furthermore, the administration’s new regulations and proposals require that the industry make new efforts to minimize the destruction caused by the technique to limit the damage to wildlife, water quality and the safety of residents.

“Any major commercial or economic activity -- whether building a highway or a port or extracting important natural resources -- is going to have an environmental impact,” said James Connaughton, chairman of the White House Council on Environmental Quality. “The reason we have environmental laws is to do the best to understand the impacts and mitigate the effects even as we enjoy the quality-of-life benefits that come from those various activities.”

However, residents and environmentalists accuse the administration of purposely manipulating laws to ensure that mountaintop mining continues.

“We have found two ways that mountaintop removal mining is an illegal practice and instead of owning up to it and figuring out what to do, they have changed the law,” said Joe Lovett, the West Virginia lawyer who has argued most of the cases on the issue.

In the case of the Clean Water Act rule, U.S. District Judge Charles H. Haden was on the verge of ruling when the administration changed the rule in 2002. Haden found the new regulation illegal, only to be reversed by an appeals court a year ago.

In the case concerning mining within 100 feet of a stream, the plaintiffs again prevailed in district court, but lost when the appeals court found that the case should have been tried in state court.

Lovett already had been trying to move the case to state court. But now Lovett, who heads the nonprofit Appalachian Center for the Economy and the Environment, wonders whether it is worth his time, because the administration’s new policy could undermine his case.

The West Virginians whom Lovett represents are too angry to quit.

“God compels me to keep fighting,” Bonds said. “When these mountains go, our culture, our heritage and our identity are gone. This is a spiritual issue as well as an environmental issue.”

More lawsuits will be coming soon, they say, the first of which will charge violations of the Endangered Species Act. The group also is appealing permits for two new mines, including one that would tear off the top of a mountain above an elementary school.

And activists such as Freda Williams hound state regulators and the coal companies about the mudslides that have inundated their communities.

“It’s the only avenue that citizens have to try to make their water and community safer from these coal companies,” Williams said.

As part of a settlement in a case filed by residents of Appalachia, the administration spent $5 million studying mountaintop mining and released a draft environmental impact statement in May. The document chronicled heavy environmental costs but proposed only one solution: to better coordinate the permitting process for mountaintop mining.

“Faster permitting for those damaging processes is a slap in the face to those who have suffered greatly,” said Carol Warren, a policy specialist for the Catholic Diocese of Wheeling-Charleston, which has spent millions of dollars helping residents whose homes have been damaged by floods that were made worse by mountaintop mining.

Last month, Bush administration quietly proposed two more regulatory changes that would benefit the coal mining industry and could throw obstacles in the way of groups trying to use the legal system to stifle mountaintop mining.

One change would define ownership more narrowly, which environmentalists said could make it easier for operators of derelict mines to create shell companies to open new mines. The other would give the federal government the option of allowing states whose regulations fell short of federal standards to retain authority over mining operations.

“The Bush administration is on a tear to destroy our region,” Lovett said. “There is nothing the coal industry can’t get from the Bush administration.”