Today the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, overturned a federal judge’s 2007 ruling to require greater environmental review of permits for mountaintop removal in West Virginia.
The decision, while devastating for Appalachia’s mountain communities and waterways, should be no shocker; this was the fourth time in eight years that the 4th Circuit Court has thrown out federal court rulings that sought to tighten mountaintop removal standards in West Virginia.
Charleston Gazette reporter Ken Ward, Jr. is closely following the story and its ramifications on his blog. The Associated Press also has the story.
The 2-1 majority opinion was written by Clinton-appointee Roger L. Gregory, the first African American justice to be named to the 4th Circuit Court. Gregory wrote:
In making this determination, we must first appreciate the statutory tightrope that the Corps walks in its permitting decisions. In passing the CWA, Congress aimed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2000). But, in passing SMCRA, Congress sought to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” 30 U.S.C. § 1202(f)(2000).
As the dissenting voice, Judge M. Blane Michael from West Virginia concluded:
Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources.
Judge Gregory’s colossal oversight notwithstanding, the true verdict on mountaintop removal is already in: Since its launch in 1970 as a quick and dirty option to cheaply procure coal, over 470 mountains in central Appalachia have been blown to bits, a million and a half acres of hardwood forests have been destroyed, and over 1,200 miles of waterways had been sullied and jammed with mining fill. Blasting and coal dust has made life unbearable for anyone in the strip-mined areas. Wells have been busted and polluted with toxic waste. Because of the mechanization of above-ground mountaintop removal, the number of coal-mining jobs has plummeted as poverty rates soar in strip-mining areas.
Mountaintop removal has not only destroyed the natural heritage, it has ripped out the roots of the Appalachian culture and depopulated the historic mountain communities in the process. Part of that heritage is Black History Month founder Carter Woodson, who followed his brothers into the West Viriginia coal mines in the 1890s and served what he called his “six-year apprenticeship. The first mountaintop removal operation was launched in those same hollows of Fayette County, West Virginia, less than a century later.
As any judge in Richmond must know, our nation’s coal industry was born in 1746, in the Richmond area, with black slave labor. This included some of the first strip mining operations. Lacking the engineering technologies from Britain, the sheer force of the slave labor to function as human bulldozers stunned a visiting Scottish coal engineer. “At the will of their master,” he wrote in a letter, slaves at the coal mines in Virginia “could be seen removing as high as thirty feet of cover to obtain four feet of coal.”
In the spring of 1838, over forty black slaves and their two foremen were buried alive 700 feet below the earth when an explosion devastated the Black Health Coal Pit in Virginia. Undaunted, the president of a nearby coal mine took out an ad in a newspaper for more laborers. He appealed directly to slave owners to hire out their slaves. “There is no better please in this country where slave labor commands as much, where their general health is better, and where the treatment and contentment of the slaves are surpassed. It is true that within the last few years several disastrous accidents have occurred, but from the scientific and practical skill attracted to the mines, these accidents will be of rare occurrence, it is to be hoped.”
At the Dover Pits in Virginia in 1837, one visitor noted that slaves literally worked as mules to transport the coal to the main entry. He wrote: “Each man has a chain fastened by straps around his breast, which he hooks to the corve, and thus harnessed, and in a stooping posture, he drags his heavy load over the floor of rock.”
Slavery in the coal mines finally came to an end in the spring of 1865. When Union forces advanced into Confederate territory in Virginia, slaves climbed out of the coal pits at Dover in total desertion and fled for Richmond, bringing this ignominious first chapter of the coal industry to an end.
