The Washington Legal Foundation (WLF) filed a brief today in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia, urging the court to overturn a federal district court decision in West Virginia that would effectively ban not only all mountaintop coal mining, but also any other activity that would have even minimal environmental impacts in West Virginia.
Mountaintop coal mining involves blasting the surface of the mountain to expose the coal seams. After the coal is mined, the area is restored to its original contours. However, excess rock and dirt are carefully placed between the mountain in valley fills that necessarily involve minor disturbance to some intermittent and perennial streams. West Virginia’s Director of Environmental Protection has interpreted its buffer zone rule regulating activity within 100 feet of streams in a way to allow such valley fills as long as water quality and other environmental values are protected.
Under the federal Surface Mining Control and Reclamation Act (SMCRA), West Virginia has been given exclusive jurisdiction to regulate mining activities under its state law. A Memorandum of Understanding (MOU) signed last fall by the Director, EPA, the U.S. Army Corps of Engineers, and the Department of Interior, acknowledged that valley fills are permitted as long as the impacts are minimized. Nevertheless, the district court ruled that any impact on any part of the stream is not permitted under West Virginia’s buffer zone rule.
On appeal, the federal agencies abruptly switched their position on valley fills in a letter dated April 17, 2000 to the Director, agreeing with the district court and revoking the MOU. WLF argued in its brief filed on behalf of itself and the Allied Educational Foundation, that the district court lacked jurisdiction to even hear the case because 1) the citizen suit provision of SMCRA invoked by the plaintiffs only applies to federal law, not to the state buffer zone regulation, and 2) the Eleventh Amendment provides the states with immunity against citizen suits in federal courts seeking to enforce state law as opposed to federal law. Congress is also looking at this case for legislative action.
* * *
For further information, contact Paul D. Kamenar, WLF Senior Executive Counsel, at 202-588-0302.