On Friday, March 23, Judge Chambers handed down his decision in the year and a half old lawsuit filed against the Army Corps of Engineers by EarthJustice and the Appalachian Center for Economy and Environment on behalf of the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Coal River Mountain Watch. In his decision he rescinded the permits for 4 surface mines operated by out-of-state coal company, Massey Energy saying the Corps has been permitting valley fills in violation of both the Clean Water Act and the National Environmental Protection Act.
Valley fills are the byproduct of Mountaintop Removal mining where the former mountaintop (or “overburden” as the industry calls it) is dumped into the adjacent valley, burying the headwater streams. A 2005 report stated that 1200 miles of these ecologically crucial streams had been buried in Appalachia.
The Corps does have a mitigation program to try and replace or repair disturbed streams, but there is little science behind the program. Judge Chambers wrote in his decision that the Corps “could not reasonably conclude that mitigation will offset the loss because it does not know what to replace.”
In addition, Judge Chamber was critical of the Corps for not viewing the cumulative effects of surface mines, but looking at only one permit at a time. The coal industry routinely files for adjacent permits in small sections rather than one big permit even though they will act as one surface mine site.