From pick and shovel to mountaintop removal: environmental injustice in the Appalachian coalfields.
I. INTRODUCTION
II. COAL MINING AND APPALACHIAN COMMUNITIES: A HISTORY AS DARK
AS THE MINES THEMSELVES
A. Union Battlefields in Appalachia
1. The Mine Wars: 1900-1932
2. The New Deal and the Rise of the UMWA: 1932-1941
3. The Second World War: 1940-1945
4. Postwar Economic Decline in the Appalachian
Coalfields: 1946-1960
B. The Coal Camps After World War II
1. The Coal Bust of the 1960s: New Relationships Between Coal
Camp Residents and the Companies
2. The 1970s Coal Boom
3. The Coal Camps: 1980 to Present
III. REGULATION OF THE ADVERSE IMPACTS OF COAL MINING
A. Historical Overview of the Pre-SMCRA Period
B. SMCRA 's Cooperative Federalism Approach to Regulation
C. Coal Industry and State Opposition to Implementation,
Administration, and Enforcement of SMCRA
IV. "ALMOST LEVEL, WEST VIRGINIA": MOUNTAINTOP REMOVAL STRIP MINING
A. Description of Mountaintop Removal Mining Methods
B. SMCRA's Strict Limits on Mountaintop Removal Mining
C. Media Expose of Mountaintop Removal Impacts
1. State Mountaintop Removal Permitting Receives Scrutiny
2. State Mountaintop Removal Permitting Decisions
Questioned by Environmental Protection Agency
3. Coal industry's Initial Response to Media Investigations
of Mountaintop Removal
D. Lawlessness: Regulators Ignore SMCRA's "Approximate Original
Contours" Mandate
1. The Response of Industry and Regulators to the Revelation
that AOC Requirements Had Been Ignored for Two Decades
2. A Promise Broken: Systemic Waiver of Mountaintop Removal
Requirements Negate SMCRA's Economic Development Goal
a. Newspaper Investigation Discloses Agency Misfeasance
b. The Response of Industry and Regulators to the Lack
of Economic Development
E. Judicial Review: Coalfield Residents Turn to the Courts
V. COALFIELD ENVIRONMENTAL INJUSTICE TAKES A NEW FORM
A. Paradox in the Coalfields: Coal Production Booms While New
Mining Technology Alters the Environment and the Economy
Stagnates
B. Targeting Coalfield Communities for Destruction
C Mountaintop Removal at Blair Mountain: A Case Study of
Environmental Injustice in the Coalfields
1. The Dal-Tex Mountaintop Removal Complex and
Neighboring Communities
2. Mountaintop Removal Mining Impacts Stir Community
Resistance
3. National Attention Is Drawn to Mountaintop Removal Mining
at Blair Mountain
4. Facts Emerge About the Coal Company's Plan for "Working
with the Community to Minimize Its Temporary Presence
There" When Citizen's Seek Relief in Court
5. A Plan for "Working with the Community" Is Developed
at the Beginning
6. Option to Purchase Agreements
7. Bogus Dust Monitoring Program
VI. CONCLUSION
I. INTRODUCTION Travelers entering Williamson, the county seat of Mingo County, West Virginia, pass a faded roadsign that reads: "Welcome to the Billion Dollar Coalfields." The irony of the greeting is hard to escape. Driving into the town which lies in the heart of central Appalachia's coal-producing region, one sees boarded-up stores and vacant and dilapidated buildings. Discouraging economic data and high unemployment in Mingo and other coal counties of southern West Virginia confirm what the eye sees: The billions of dollars of coal reserves mined from the region have only marginally benefited local people. After a century of mining in the "billion dollar coalfields," local communities lack funds to upgrade aging schools; tens of thousands live below the federal "poverty line"; and public services such as fire, police, sewage treatment, and libraries struggle to survive on "bare-bones" budgets. While the economic stagnation of coalfield communities continues, highly efficient coal mines have revolutionized coal mining in Appalachia. Coal production largely from giant "mountaintop removal" (1) strip mines and highly mechanized underground "longwall" (2) mines approaches record levels. How does one account for the pervasive dismal economic condition in a region which could aptly be called the "Saudi Arabia of coal"? The answer lies in an understanding of the various forces that have shaped the history of the region. For better or worse, those forces--the coal industry and those who directly profit from mining, state and local politicians, and the United Mine Workers of America (UMWA)--led the coalfields to its present condition. Those same players continue to exert enormous influence, which promises to extend the economic status quo. The paucity of attention given by historians and legal scholars to the legal regime that provided the framework for economic development in the "billion dollar coalfields" provided the impetus for this Essay. The hope is that the following will initiate a scholarly discussion of environmental, economic, and social justice in a region that for a century has given much more to the nation than its citizens have received in return. This Essay begins in Section II with a presentation of the historical context in which today's continuing environmental injustice in the coalfields developed. Next, the Essay turns in Section III to a brief discussion of the emergence of the Surface Mining Control and Reclamation Act (SMCRA), (3) describing its theoretical promise to protect the coalfield communities, and setting the stage for the breaking of that promise in application. Section IV presents a description of the lawlessness in southern West Virginia with regard to the application of SMCRA to mountaintop removal. Section V, truly the heart of the Essay, describes the coal companies' calculated efforts to remove not only mountain tops, but whole communities. Finally, the Essay concludes that regulatory failures and corporate plans to maximize profits by eliminating coalfield communities have combined to continue the historic deprivation of environmental, economic, and social justice long experienced by coalfield citizens. II. COAL MINING AND APPALACHIAN COMMUNITIES: A HISTORY AS DARK AS THE MINES THEMSELVES Historian Ronald Eller describes the solitude of the mountains of southern Appalachia in the last decade of the nineteenth century: Great forests of oak, ash, and poplar, covered the hillsides with a rich blanket of deep hues, and clear, sparkling streams rushed along the valley floors. No railroad had yet penetrated the hollows. The mountain people lived in small settlements scattered here and there in the valleys and coves. Life on the whole was simple, quiet, and devoted chiefly to agricultural pursuits. (4) Thirty years later a "new industrial order" had arisen in Appalachia. (5) People of the region left their farms, moving to communities with names like Blair, Sharples, Five Block, and Monclo--people there call them "company towns" or "coal camps." (6) Countless similar small coal camps were built during the early decades of the twentieth century by coal operators to house families of men who worked in nearby underground mines. (7) Professor Eller describes in graphic detail the transformation of Appalachian communities that had occurred by 1920: [E]vidence of change was to be found on every hand. Coal-mining village after coal-mining village dotted the hollows along every creek and stream. The weathered houses of those who worked in the mines lined the creeks and steep slopes, and the black holes themselves gaped from the hillsides like great open wounds. Mine tipples, headhouses, and other buildings straddled the slopes of the mountains. Railroads sent their tracks in all directions, and long lines of coal cars sat on the sidings and disappeared around the curves of the hills. (8) Professor Eller also describes how coal mining altered the Appalachian landscape: The once majestic earth was scarred and ugly, and the streams ran brown with garbage and acid runoff from the mines. A black dust covered everything. Huge mounds of coal and "gob" piles of discarded mine waste lay about. The peaceful quiet of three decades before had been replaced by a cacophony of voices and industrial sounds. (9) "Civilization'" writes Eller, "had come into the mountains and had caught up the mountain people in the wellspring of progress." (10) The coal camp symbolized this new Appalachian industrial order. (11) Life and work in the coal camps in the early decades of the twentieth century were violent, oppressive, and exploitive. (12) The company town lay at the heart of an authoritative system. (13) Historian David Alan Corbin observed: Ownership of the land and resources gave coal companies enormous social control over the miners. "You didn't even own your own soul in those damnable places," recalled one elderly miner. "The company owned everything, the houses, the schools, churches, the stores--everything." The coal company town was a complete system. In addition to owning and controlling all of the institutions in the town, coal company rule in southern West Virginia included the company doctor who delivered the babies, the mines in which children went to work, and the cemeteries where they were eventually buried. It was a complete and ruthless rule. (14) Among the insults stemming from King Coal's tyranny were the environmental conditions in the coal camps. As the coal companies owned the towns, they were responsible for the existence--or lack thereof--of public utilities such as sewer systems. (15) However, only two percent of coal towns possessed such a system; the vast majority of the towns simply dumped their waste into nearby creeks. (16) The combination of this discharge of raw sewage with acid mine runoff completely eliminated all animal life in many streams. (17) The impact of water pollution on human health was also evident. Hot summers caused the polluted waters to emit an unbearable stench, and diseases such as typhoid ran rampant among the children of the coal camps. (18) The coal companies' response to the situation then is much the same as it is now: They "argu[ed] that coal could not be mined economically if they concerned themselves with ecology." (19) A. Union Battlefields in Appalachia 1. The Mine Wars: 1900-1932 Unionization was central in coal camp residents' struggle against the oppression of the company masters. "[W]hen miners did go on strike for their union," Corbin writes, "they did so not for simple wage increases, but for their dignity and freedom." (20) From the last decade of the nineteenth century until the beginning of the New Deal Administration of President Franklin Delano Roosevelt, miners battled nonunion coal operators who controlled the southern West Virginia coalfields with an iron fist. Actual warfare between coal company forces and miners broke out there during the decade from 1912 to 1921. (21) These West Virginia "mine wars" involved skirmishes between private armies. On one side were the hired guns of the coal operators and on the other stood thousands of armed miners rebelling against coal company rule of the nonunion coal camps. (22) On several occasions martial law was declared and the state militia was summoned by West Virginia Governors whose sympathies lay with coal companies rather than the miners. Miners were arrested and tried by military tribunals. (23) Once, in September 1921, President Warren G. Harding sent federal troops to intervene in the conflict. (24) When federal troops arrived, the miners' "army" dispersed, but an unarmed political struggle continued as miners sought to win the right to unionize. (25) Ten years later, Russell Briney, reporting for the Courier-Journal in Louisville, Kentucky, observed that the coal industry's domination and oppression of Kentucky miners and their communities had not abated: In 1931, for all practical purposes, the only law for the miners ... was the mining companies' law as interpreted by deputies sheriff selected and paid directly by the companies.... The system was simply law enforcement stripped of any pretense of impartiality, and it is difficult to imagine a more effective device for promoting violence and engendering resentful hatred among a people bred in the free air of the Kentucky hills. (26) This decades-long imbalance of power was soon to be readjusted. By 1930 the Appalachian coal industry "was sliding toward bankruptcy as the national economy caved in on top of an already depressed [coal] market." (27) Cutthroat competition and "a vicious price-cutting spiral led ever downward until at last, in 1932, at some pits ... coal was offered for sale at the incredibly low price of ten cents per ton." (28) Bank and coal operator bankruptcies swept through the coal fields. (29) Companies, straining to keep their heads above water, first cut miners' already-low daily wages and then put their pay on a piecework basis. (30) Miners were allowed to stay underground for as long as they wished, resulting in ten- to twelve-hour workdays. (31) Given this economic chaos, it was not surprising that attempts to unionize the coal camps were beaten back. Membership in the UMWA in 1930 had slipped to "a few hundred diehard members in West Virginia, even fewer in Kentucky and Alabama." (32) The affects of the Depression, as bad as they were for most American workers, were even more devastating to Appalachian coal miners and their families: People who have never lived in mining communities cannot comprehend the feeling of captivity and helplessness that lay so heavy in the coal camps through these years. In times of prosperity the miner had been little better than a serf in his masters' mine, and the Depression was far advanced before union membership and the apparent sympathy of a great national administration brought relief to a situation which by then had become highly explosive. (33) 2. The New Deal and the Rise of the UMWA: 1932-1941 When President Franklin Roosevelt was inaugurated in Match 1933 to serve his first term, the battle-fatigued UMWA was invigorated. John L. Lewis, the UMWA's legendary leader, "owed his opportunity during the 1930s to friendly federal legislation sponsored by Roosevelt and his liberal allies." (34) Union organizers told miners: "The President wants you to join the union." (35) Within a few months after the union-friendly Roosevelt Administration assumed office, the UMWA held a massive union meeting in Charleston, West Virginia's capital. More than 2,500 delegates showed up in what the UMW Journal characterized as "the very citadel of the non-union bituminous coal industry." (36) It was reported that within the short span of two months, the union had established 728 local union offices in four southern states "with members in virtually every non-union coal camp in this territory." (37) Enactment of the National Labor Relations Act (38) in 1935 facilitated unionization of Appalachian coal mines. (39) The coming of the New Deal did not immediately end coalfield violence nor the terrible poverty of the coal camps. Labor unrest and strikes continued to pit miners against nonunion coal operators during the 1930s. The combined impacts of the Great Depression and accelerated union organizing insured that coalfield communities would continue as a battleground of labor and industry. Unionization during the Depression came to the coal camps in diverse ways. Some coal operators gave in quickly, while others "resolved to fight the menace so long as they had a shot to fire." (40) Appalachian historian and lawyer Harry Caudill captured the attitude of those coal operators who swam against the rising UMWA tide in the 1930s: [T]hey proceeded step by step along the road to intimidation and coercion. Miners suspected of joining the union, harboring its agents or spreading its propaganda were summarily ordered out of company houses and off company property. The detailed leases covering the camp residences, as interpreted by the docile courts, authorized such summary evictions. Many unfortunate coal diggers found their possessions and families thrust out of doors when they were practically without funds and with no place to go. If another miner took such a dangerous family into his own house for even the shortest period he risked the same fate. (41) Company-town owners contradicted these reports. One operator testified before a federal commission charged with investigating coalfield labor strife that owners of company coal camps were "'considerably more tolerant and considerably slower ... than the dictates of justice or as humanity requires.... In all cases, regard has been paid to the health and comfort of those persons whom it was found necessary to evict.... Evictions have universally been carried out in a humane manner.'" (42) Other evidence calls into question operators' definition of "justice" and "humane." David Corbin reports that notice rarely preceded evictions. (43) Rather, companies routinely dispatched "mine guards" to a miner's home to dump him, his family, and furniture onto the company-owned street. (44) Professor Corbin recounts an eviction during an early effort to unionize the coal camps along Cabin and Paint Creeks in Kanawha County, West Virginia: [M]ine guards arrived in the early morning and threw breakfasts out with the furniture. During the process the mine guards destroyed over $40,000 worth of furniture. In the town of Banner, the mine guards came to the house of Tony Seviller, whose wife was pregnant. The head of the squadron shouted, "Get out!" Mrs. Seviller, in bed and in labor when ordered out, responded, "My God! Can't you see I am sick; just let me stay here until my baby is born." The guard leader replied, "I don't give a damn, get out or I'll shoot you out." Mrs. Seviller gave birth to her baby two hours later, in a tent furnished by the UMWA. (45) Coal Company reaction to union organizing was not limited to "legal" tactics like eviction. (46) According to Harry Caudill, "Suspected organizers and miners who were believed to have joined the union were secretly slain and their bodies cast out, gangster-fashion, on creek banks or in alleys." (47) Caudill adds, with more than a small measure of irony, that "[t]he company-controlled sheriffs and state patrolmen were baffled by these mysterious happenings and found no clues as to the identity of their perpetrators." (48) However, as unionization rapidly proceeded in the 1930s, miners felt empowered. (49) "[T]he swarms of deputies-sheriff, state highway patrolmen, private detectives and industrial policemen felt control of the situation slipping through their fingers." (50) 3. The Second World War: 1940-1945 By 1940, UMWA mines accounted for ninety percent of domestic coal production. (51) The federal government nationalized and tan coal mines during World War II; government negotiations with legendary UMWA President John L. Lewis resulted in generous miners' wages. (52) Caudill described the new coal boom sparked by the war: On the whole the industry awakened with startling speed and performed wartime production miracles. In a market in which heavy machinery of all kinds was extremely diff<cult to obtain, in which competition for labor was sometimes almost insane, the coal corporations managed to assemble labor crews and find the essential equipment required.... And the creek and hollow mountaineers, and the multitude of one-time miners employed on W.P.A. projects, turned eagerly to their old calling.... Empty camps filled again and the ghastly, painted houses swarmed with new brigades of ragged irrepressible children. (53) Wartime energy demands boosted coal production to new heights. The coal camps had been rejuvenated by 1945, and union miners and their families were enjoying unparalleled freedom and prosperity. These good times would be short-lived. 4. Postwar Economic Decline in the Appalachian Coalfields: 1946-1960 Following the world war, the owners resumed control of the mines. (54) At the end of hostilities there was a glut of coal on the market created by the high consumption needed to satisfy wartime needs and the reduced demands of the peacetime economy. (56) Moreover, coal was beginning to lose its traditional markets. The fuel of choice for railroads and home furnaces turned from coal to oil and natural gas. (56) A new era of labor-management hostility arose as the coalfield economy declined. The UMWA and the Bituminons Coal Operators' Association (BCOA) finally agreed on contract terms that would revolutionize coalfield labor relations after a long and hostile strike in 1950 and 1951. (57) In this rapprochement, operators agreed to increased wages and benefits while the union did not object to mechanization of the mines. (58) John L. Lewis led the union team negotiating a deal whereby they traded mine mechanization for "high wages and a health and welfare fund that promised comfortable retirements and good medical care for both retirees and active miners." (59) Lewis and national UMWA leaders expected job losses due to mechanization to increase slowly but steadily. (60) These optimistic expectations were overcome by the reality of a quick and significant increase in coal production and a concomitant rapid and enormous loss of miners' jobs. (61) Coal production per man-day increased from 5.57 tons in 1945 to 10.05 tons in 1957. (62) In 1948, 117,104 miners were at work in West Virginia. (63) In 1957, only 58,732 miners had jobs, and by 1961 employment of miners had shrunk to only 42,557 in West Virginia and less than 200,000 nationwide. (64) B. The Coal Camps After World War II The discussion above addresses labor management relations and the Appalachian coalfield economy in the decade and a half after the end of World War II. But what of the company camps of Central Appalachia? Given the history of exploitation, it is not surprising that the corporate owners of the camps, either coal companies or successor land holding companies, cynically continued to reap profit from those who remained. As the 1960s began, a combination of coal industry consolidation, a poor coal market, population exodus from coalfield communities, and the attendant collapse of mining employment "made for a severe and chronic economic predicament" for West Virginia's coalfield communities. (65) West Virginia's unemployment rate was the nation's highest, more than triple that of the test of the nation. (66) As the coal-based economy continued to collapse, tens of thousands left the coalfields in search of work in the industrial plants of the Northeast and the nonunion textile and manufacturing plants of the Sunbelt. (67) 1. The Goal Bust of the 1960s: New Relationships Between Goal Camp Residents and the Companies Unwilling to be stuck with camp houses, commissaries, and other facilities that the newly contracted industry did not need, some camp owners altered the relationship between themselves and the miners living in the company houses. (68) This relationship continued in many instances for decades; even today there are former coal camps where the successors in interest to the first coal company masters collect rents from descendants of early miner occupants. (69) The rent in most cases was and is consistent with the quality of the premises involved. For example, a 1987 Charleston Gazette (the Gazette) article related that coal camp houses were being rented then for $15 per month. (70) While the rental amount seems incredibly low, one must consider that the amount reflects what is said to be the first rule of real estate valuation: location, location, location. Associated Press reporter Jules Loh described the location of the old coal camp in Eureka Hollow: The springs from Eureka Hollow flow into Elkhorn Creek. The village on its trash-strewn banks at the mouth of the hollow is Eckman. You won't find it on a road map. Eckman consists of a grocery store, fining station and a one-room post office. Wooden planks thrown over a ditch at the uphill edge of town mark the start of the road up Eureka Hollow. Woebegone wooden houses, many of them falling down, dot the hillsides along the road. Tree limbs, like crutches, prop up porches. Abandoned houses crumble alongside inhabited mobile homes. Coal dust trodden into black gum replaces grass. Red dog, a rust-colored mine waste turned into coarse gravel, paves driveways. Automobile carcasses rot beneath clotheslines burdened with patched jeans and faded shirts. Roosters peck around lopsided sheds, providing a staccato music. Homemade pinwheels stuck in bare yards offer snatches of joy. (71) After closure of the mines connected to a company town, the landlord-tenant relationship was most frequently a "month to month" agreement. (72) These month to month tenancies in many instances were honored by the coal camp owners for decades. However, as explained below, in the last ten years encroachment of large-scale mountaintop removal and longwall mining operations has often resulted in abrupt termination of these long relationships. With little notice, families whose history in an old coal camp extends back for many decades have been unceremoniously forced to move to make way for mining operations. (73) In some instances, a whole community has been evicted. (74) Within weeks of notice, homes were torched and bulldozed, leaving only empty lots where community and family roots had been planted and nurtured for the better part of a century. (75) Renting coal camp houses was not the only way owners of coal camps sought profit. In the 1950s many coal companies chose to sell the camp houses to their occupants. (76) Harry Caudill describes the sales "technique" used to persuade coal camp occupants to buy the houses in which they lived: The first step in their program to "free" the camps lay in the making of blandly optimistic statements to their employees and to the general public. They gave the impression that the company anticipated twenty or thirty years of uninterrupted mining with their employees drawing high wages. No mention was made of mechanization or of reduced payrolls. While no specific promises were made, the miner and his wife were led to believe the inhabitants of the camps could expect continued employment at union-scale wages. (77) The next step in the operators' disposition of coal camp houses was the announcement that they were getting out of the real estate business so their executives could concentrate on mining. (78) Writing with razor-sharp sarcasm, Caudill describes the "con": Besides, said the benevolent bosses, they wanted the miners and their families to enjoy the feeling of independence and self-assurance that comes from home ownership. It was undemocratic, the Big Bosses now declared, for the company to dominate the affairs of the community, A new generation of stockholders and officials wanted the people to live proudly in their own homes and to govern their communities in conformity with the Great American Dream. (79) The company owners opened up offices for the purpose of facilitating the sale of camp houses. (80) Prices were not exorbitant and occupants were given purchasing priority. (81) Buyers could pay through monthly deductions from their wages. (82) The timing of these sales programs was excellent--for the company owners. Most sales occurred as the winds of mechanization began to blow through the industry. (83) The timing was not so good for a miner who might find "himself jobless before his home was cleared of debt, though most purchasers pridefully held a deed 'free and clear of encumbrances' before the discharge notices were slipped into their pay envelopes." (84) Although nearby underground mines closed and production from the remaining deep mining operations continued to decline, if the new home owners could find work in other mines they tried to maintain and improve what they had purchased. (85) Moreover, a critical distinction existed between coal camp rental properties, whose residents had no incentive to spend their often meager income on property that they were merely renting and houses purchased by camp residents from company owners. (86) Families in the latter category generally invested in the maintenance, repair, rehabilitation, and remodeling of their homes to the extent that their income would enable them to do so. (87) Attorney Gerald Stern described how families worked to improve the camp houses they bought from the company and the investment they made to transform a camp house to a home of their own: The miners took great pride in turning them into real homes, helping each other, or even paying someone to do the work once they saved enough money. An indoor bathroom, maybe new electrical wiring, electrical baseboard heating, new floors, a new roof, new siding to keep out the cold, maybe a new porch or even a new room. Roland [Staten] and his wife Gladys spent seven years remodeling House No. 20--adding a cesspool, paneling, insulation, siding, a new roof and furnace, and even a garage. This was no coal-camp house anymore. (88) In those communities where mining jobs could still be found, miners receiving respectable middle-class wages often built modest new homes so that they could continue to live near relatives in what had been their homeplace for many decades. Of course, when a camp house was purchased and the family breadwinner lost his mining job and could not find another that paid a living wage, purchasing food and fuel for heating and cooking took precedence over home maintenance and repair. During the 1960s bust, and again in the last decade and a half of the twentieth century, many residents of the former coal camps found it increasingly difficult to maintain their homes as more and more mines closed and mining jobs evaporated. Thus, to the vicious cycle of coal industry boom and bust--long the dominant impediment to sustained coalfield economic development--was added the albatross of home ownership. Miners who purchased a coal camp house and abruptly found themselves on the unemployment dole without promise of finding work faced the horns of a dilemma. To provide for their families, they would be forced to migrate to another region of the country leaving behind their relatives, lifelong friends, and ancestral homeplace. And, if they decided to leave, it would be difficult to sell their home. (89) If they could find a seller at all, they were likely to sell at a significant loss. If they stayed, there were no jobs and only the largess of government relief programs was available to sustain them. Faced with such a choice, many unemployed miners chose to seek work in other states, abandoning their homes and the life savings they often represented. (90) Some who left could not establish themselves in other places and returned to their homeplace. (91) Others chose to hang on, hoping against hope that another coal boom would begin and "the mines" would start hiring again. In the interim, unemployed miners would do whatever it took to survive. (92) Roger Luster, of Eureka Hollow explained the quandary he and thousands of other coal camp families faced as coal mining jobs evaporated: "It's rough, buddy.... This is home. This is where we were both born and raised. We like it here. Until I can find work, we stay. If the program I'm on runs out, well, then I guess we'll have to think about moving on. Where to? Where can a man with a family go with no place to set out for and no money to get there? Hard as it is, we want to stay here. This hollow is home." (93) Unfortunately, new underground and strip mining technology and other political and economic factors dashed dreams of a new boom and "the mines," as 1960s coal camp residents knew them, ceased to exist. Professor John Alexander Williams places the hopes of coalfield residents and four decades of reality into perspective: One measure of the social change induced by these trends was the number of miners in West Virginia: more than 150,000 in 1945, but just over 17,000 in 1999, by which time there were fewer miners in the state than there were nurses or telephone solicitors. WalMart now has more employees in West Virginia than any coal company, although coal industry apologists still insist that "five thousand people working at WalMarts in this state don't equal 400 coal jobs." (94) Michael Harrington's widely acclaimed book, The Other America, (95) captured the plight of the urban and rural poor at the beginning of the 1960s. The book was a phenomenon, revealing for the first time to a broad national audience that the nation's post-World War II economic prosperity had not reached many Americans. Harrington observed, "The millions who are poor in the United States tend to become increasingly invisible. Here is a great mass of people, yet it takes an effort of the intellect and will even to see them." (96) The dire circumstances of many who lived in the coal camps of central Appalachia was not invisible to those who took the time to look. But, as Harrington explained, "looking" took some effort: Poverty is often off the beaten track. It always has been. The ordinary tourist never left the main highway, and today he rides interstate turnpikes. He does not go into the valleys of Pennsylvania where the towns look like movie sets of Wales in the thirties. He does not see the company houses in rows, the rutted roads (the poor always have bad roads whether they live in the city, in towns, or on farms), and everything is black and dirty. And even if he were to pass through such place by accident, the tourist would not meet the unemployed men in the bar or the women coming home from a runaway sweatshop. (97) Two years before The Other America was published, one important observer did take the time to visit West Virginia's coal camps. Then-Senator John F. Kennedy was shocked by what he saw and learned there during the state's 1960 presidential primary. (98) That primary campaign was crucial to Senator Kennedy's quest for the Democratic Party's nomination and his later election to the presidency. (99) As one West Virginia newspaper observed: It was important to Kennedy.... He won the primary, showing that a Catholic could win in a predominantly Protestant state, a key victory in his drive to the nomination and the presidency. It was important as well because of what he saw, and what the reporters and TV cameramen with him saw, at the home of Burley Luster. Luster was a disabled coal miner with a sickly wife and eight hungry children living in a four room shanty. Kennedy talked with them for 45 minutes and then, shaken, stood on the Luster's sagging front steps and promised, if elected, to press Congress for federal help in Appalachia. Kennedy's message from Eureka Hollow alerted America to the paradox of wretched poverty in an area teeming with rich resources. (100) Professor John Alexander Williams relates that "Kennedy and his entourage ... traveled through West Virginia by bus and car in the early spring, when nature had not yet hidden the abuse of the land by mining.... The politicians and reporters following the campaign were less impressed by the state's scenic beauty than by its environmental scars and miserable roads." (101) Despite the relief efforts at the federal level, life was as bleak as ever in the coalfields of Appalachia as the 1960s drew to a close. 2. The 1970s Coal Boom As the decade of the 1970s began, John Denver's song Take Me Home, Country Roads portrayed West Virginia as "almost heaven." (102) Denver's song put West Virginia residents in an upbeat mood, coming along "at just about the right time" as "it reflected a growing feeling of satisfaction shared by many, if not most, citizens, a feeling that one of the worst chapters in West Virginia's history was closing at last." (103) The coalfield economy perked up again at the beginning of the 1970s as the United States attempted to come to grips with an "energy crisis" triggered by price fixing of petroleum supplies by a Middle-Eastern cartel. (104) The cost per barrel of petroleum soared during the 1970s as the Organization of Petroleum Exporting Countries (OPEC) ratcheted up prices in response to the Yom Kippur War and the closing of the Iranian off fields after the Shah of Iran was overthrown in a 1978 Islamist coup. (105) The U.S. economy reeled in the 1970s from the impact of the abrupt skyrocketing of energy prices. (106) The nation's gross domestic product fell by 6% and unemployment doubled to 9%. (107) In the former company towns of southern West Virginia and other Appalachian states, significant numbers of job postings for coal mines appeared for the first time in decades as electric energy producers shifted from petroleum to a more reliable and less costly product. (108) In West Virginia alone, more than 17,000 new miners were placed on payrolls during the period between 1973 and 1978. (109) Freelance journalist Rudy Abramson capsulized life in the Appalachian coalfields during the short-lived boom: During those fabulous days in the mid-seventies, thousands of men who had left the mountains came home from distant cities to dig coal. In West Virginia, Virginia, Kentucky, and Tennessee, small truck mines that had been abandoned for years were reopened. Nearly anybody who had or could borrow money to buy a dump truck and a road grader could become a strip mine operator. Bootleggers mined without permits and got good money for gray mixtures of coal, slate, and rock. Spot market prices soared to nearly $100 a ton and suddenly-rich independent operators lived in opulence, bought luxury cars for their wives, and concluded business deals on the golf course. (110) Two and a half decades after the boom, Abramson interviewed people who had lived in or near the Boone County, West Virginia, town of Whitesville. They described life there during the boom: Saturday nights in Whitesville were reminiscent of the good old days after World War II when it was hard to get through the crowds on the sidewalks. Miners' families from communities up and down the Big Coal River--Seth, Comfort, Sylvester, and Sundial--and up from Marfork, High Coal, and Seng Creek Hollows came to shop, take in a movie, and catch up on the news. You could forget finding a parking place in the middle of town. (111) The good times did not last. 3. The Coal Camps: 1980 to Present The boom of the 1970s was short. As oil prices increased in the 1980s, and midwestern utility companies turned to cheaper western coal in the 1990s, (112) the economy of the Appalachian coalfields cycled again into a bust phase. (113) Another factor responsible for this shift was the continuing loss of mining jobs in Appalachian underground mines resulting from even further mechanization. (114) In 1980, coal jobs had dropped by 7,000 from the boom high of almost 63,000 in 1978; five years later only 35,813 miners were working in West Virginia. (115) Ten years later, in 1990, coal mine employment had dipped further to less than 29,000. (116) Today, less than 15,000 miners work In the state. (117) The recession of the early 1980s further weakened West Virginia's economy. By 1984, West Virginia had the nation's highest unemployment rate and "economic indicators pointed to continuing difficulties, with recovery trailing far behind that of the other states." (118) Another important factor in the economic plight of West Virginia from the 1980s to the present has been the coal industry's continuing political domination of state government. In 1985, the West Virginia Legislature enacted the "super tax credit," a law supposedly intended to expand economic development In the state. (119) In 1986, the legislature extended the super tax credits, provided that existing state companies increased hiring and modernized their operations. (120) Given the grip of King Coal on state politicians, it is not surprising that coal companies received nearly ninety percent of the total amount of these credits. (121) This coal lobbyist-generated windfall for industry harmed the state economy rather than promoting economic development. One observer has suggested that: [I]n their long-range effect, they may have actually compounded the very problem they were supposed to alleviate. The study of the super tax credits in 1990 revealed that the number of jobs in coal mining had fallen by 1,300 in spite of an increase of 13.3 percent in coal production. The adverse effects of the super tax credits on state revenues and on the general economy led in 1990 to legislation to prevent coal companies from using the super tax credits to avoid payments of severance taxes.... [T]ax officials estimated that about 20% of the coal mined in the state was produced free of any business taxes. (122) During his last term in office (1985-1989), Governor Arch A. Moore Jr. led efforts to enrich coal companies at the expense of coalfield citizens. Under the guise of stimulating new coal development, the state's Workers' Compensation Fund (WCF) slashed premiums paid by coal companies by thirty percent and awarded generous refunds to companies. (129) By the beginning of the 1990s, the WCF faced a deficit of $1.2 billion. (124) Sadly, the super tax credits, the reduction in worker's compensation premiums, and other components of the Moore Administration's economic development program furthered the Governor's corrupt self-enrichment scheme: In return for tax favors, Moore and others in his administration received hundreds of thousands of dollars from unscrupulous and compliant coal operators and other businessmen for illegal "underground" political activities and for their personal profit. These nefarious dealings [involved] government officials, businessmen, their intermediaries, lobbyists, and others seeking favor.... (125) While West Virginia ended the 1970s in better economic shape than it had been in for decades, state government corruption in the 1980s eliminated the economic gains. Journalist Rudy Abramson interviewed Randy Sprouse who had lived Whitesville, West Virginia during the 1970s boom. (126) Sprouse remembered the prosperity of the moment: "You had two or three clothing stores, shoe stores, furniture stores, a whole bunch of restaurants, taverns, a movie theater, and a bowling alley.... Anything you wanted, you could get right there in Whitesville. You didn't have to leave Whitesville for anything." (127) Whitesville today is depressingly different: Most of [what Randy Sprouse described] has been gone for years. The sidewalks of Whitesville are usually empty. Vacant stores dot the town's main drag and windows are covered with dust from coal trucks that rumble through night and day. Traffic lights work intermittently. Parking meters were removed long ago. (128) The economic plight of coalfield communities, perpetuated in the 1980s by corrupt and ineffective state government, continued throughout the next decade as new mining technologies replaced more labor-intensive methods. While Appalachian coal production approached record levels in 2003, the number of coal miners declined to its lowest level since the nineteenth century. (129) The coalfield economy continues to stagnate with high levels of unemployment in those areas which lead in coal production. (130) Unable to rely on state government for economic and environmental protection, the communities looked to Washington for assistance. The federal assistance that John F. Kennedy had promised from the front porch of Burley Luster's Eureka Hollow home in 1960 materialized in a plethora of federal programs such as food stamps and Medicaid, which continue to this day to sustain many who remain in the old camps of central Appalachia. (131) One new federal program, the Surface Mining Control and Reclamation Act of 1977, held out the promise of protecting coalfield communities and their citizens from the environmental, economic, and social harm that unregulated coal mining had caused. The following discussion examines how that promise was effectuated. III. REGULATION OF THE ADVERSE IMPACTS OF COAL MINING When historian John Williams completed West Virginia: A History, he made predictions about the future of West Virginia and its coalfield communities: In terms of short-run market considerations, strip mining is the swiftest and cheapest way to expand coal production.... Stripping is the most costly method of producing coal, however, if social and environmental factors are calculated.... The future of tourism and recreation depends to a significant extent on what is done about surface mining and other environmental issues.... Yet the political impact of recreation industries is diffuse, and the aesthetic and human values that environmental degradation subverts are difficult to measure. By contrast, the coal industry retains much of its old-time political power in West Virginia and can readily deploy it to defend immediate and specific economic concerns. (132) It appears that Professor Williams was especially prescient when he predicted that "environmental controversies promise to generate the most lively and probably the most crucial debates that West Virginia faces in the last quarter of the twentieth century." (133) Professor Williams's prediction that environmental controversies would come to the fore as the twentieth century came to a close was not based on gut instinct or crystal-ball gazing. Rather, as a historian, Williams based his predictions on an appreciation of the policies, politics, and players that had shaped West Virginia's past and Ms recognition of the old and new forces that were then in motion vying for control of the extraction of Appalachia's vast coal wealth. (134) As students of history are aware, most of the enterprises of the Industrial Age created significant adverse externalities. (135) For example, effluent from steel and chemical manufacturing poisoned thousands of miles of the nation's streams and air pollution from the same plants clouded urban skies. For the better part of a century, the nation's polluting industries were given a free pass by Americans who agreed with industry's plea--"where there's smoke there's jobs." It was not until the mid-1960s that people in the United States began to appreciate the extent to which industrialization had externalized costs to their own communities. Citizens' demand for pollution cleanup and regulation of the adverse effects of industrial activities spurred Congress to enact the National Environmental Policy Act of 1969. (136) and reached its apogee in 1977 with passage of the federal Surface Mining Control and Reclamation Act. No other federal environmental regulatory statute contains as many opportunities for citizen involvement nor grants to citizens such a broad array of statutory rights that may be used to influence the law's administration and enforcement than does SMCRA. To understand the current struggle of the people of the coalfields for economic and environmental justice, one must understand how SMCRA came to be law and the way in which its strict mandate has been administered and enforced. The following discussion begins with an examination of SMCRA's origins in the oppressed and poverty stricken Appalachian coal camps in the 1960s. SMCRA's history is then traced from enactment through criticism of state and federal enforcement to the current extraordinary controversy over enforcement of SMCRA's so-called "mountaintop removal" regulatory regime. A. Historical Overview of the Pre-SMCRA Period Prior to the enactment of SMCRA in 1977, unregulated surface and underground coal mining created enormous environmental harm throughout the Appalachian coalfields. (137) These externalities created disincentives for local economic development as well as other adverse social and economic consequences. Generally, local people experiencing these costs of mining also enjoyed the benefits of jobs created by mining. The adverse environmental impacts of mining received scant notice in the Appalachian coal camp struggle for survival during the first hall of the twentieth century. Like the pervasive pollution that accompanied steel mills and chemical plants, coal mining's adverse impacts were seen as part and parcel of the industrialization. The most visible adverse impacts of coal strip mining were the scars gashed in Appalachian mountainsides. Surface mining strips away forest vegetation, causing erosion and attendant stream sedimentation and siltation, accompanied by negative impacts on aquatic life and drinking water supplies. (138) In some coalfield regions, iron-laden sulphuric acid mine drainage pollution from underground mining produces red-orange stained stream beds and renders watercourses ecologically sterile. (139) Underground and strip mining contaminated or depleted underground aquifers that provide domestic and farm water supplies to many coalfield families. (140) Loud noise and dust from blasting and earth-moving activities disturb nearby communities and wildlife. (141) During mining, dust and debris often fill the air as soil and underlying rock strata are blasted apart, earth is moved, and coal extracted. (142) Landslides caused by indiscriminate dumping of mine spoil downslope on steep Appalachian mountainsides buried cars, homes, and sometimes killed people. (143) State legislatures made some early ineffective attempts to ameliorate the harm caused by unregulated stripping. The first state to regulate surface mining was West Virginia, which enacted legislation in 1939. (144) A handful of states followed West Virginia's lead, but the resulting state legislation has been characterized as "mild" and merely an attempt by politicians and the mining industry to make it appear to concerned communities that steps were being taken to safeguard the environment and limit the effects of mining. (145) From the beginning of these efforts to regulate strip mining, the coal industry cooperated with local and state politicians to oppose meaningful state regulation. Economic competition between coalfield states for jobs and tax revenues fueled this opposition. (146) Instead of placing limits on the worst of strip mining abuses, legislators chose to protect their own domestic industry. Obviously, they reasoned, a state choosing to pass laws to reduce the adverse consequences of coal mining would impose increased costs on its own coal industry. Those costs would not be incurred by coal operators in other states that chose to give carte blanche to their own coal operators. State politicians recognized that the price of coal produced in a state forbearing regulation would be cheaper and thus more competitive in the market than coal produced in a state that imposed environmental regulatory costs on its operators. (147) By the end of the 1960s, public concern over the adverse impacts of coal mining had grown to a crescendo of opposition. It was generally recognized that the states could not and would not impose meaningful regulation on coal companies operating within their own borders. Coalfield citizens and other critics of strip mining realized that only a statute passed by Congress could end the states' "race to the bottom." A federal law imposing uniform national regulatory standards would nullify the strongest argument raised against regulation--in-state coal operators' competitive position vis-a-vis operators in other states. Operators in every state would be required to play by the same federal rules. The race to the bottom pressures would be eliminated by instituting a uniformly applicable federal regulatory program. Years of national media attention and unrelenting pressure from coalfield residents made it impossible for Congress to ignore coal stripping. Proponents of federal regulation accumulated massive documentation of the enormous costs coal mining had externalized onto coalfield communities. Furthermore, Congress faced a national outcry against irresponsible coal mining when the totally avoidable collapse of a huge coal waste impoundment at Buffalo Creek, West Virginia killed more than one hundred people, injured thousands more, and wiped out whole communities. (148) Twice Congress passed legislation, and twice the coal industry and its state political allies succeeded in persuading President Gerald Ford to exercise his veto power. (149) But with the transition to the Carter Administration came cooperation from the executive branch, and Congress once again passed legislation regulating surface mining. (150) On August 3, 1977, President Jimmy Carter signed the Surface Mining Control and Reclamation Act of 1977. Finally, federal regulation was being imposed on the coal industry in an effort to minimize the adverse impacts of underground and strip mining. (151) B. SMCRA 's Cooperative Federalism Approach to Regulation Paralleling other federal environmental regulatory laws, Congress designed SMCRA as a "cooperative federalism" statute. (162) Congress found that "the cooperative effort established by this chapter is necessary to prevent or mitigate adverse environmental effects of present and future surface coal mining operations." (153) However, as explained below, the conflict spawned by SMCRA far exceeded that experienced in the implementation and administration of other cooperative federalism statutes. SMCRA's cooperative federalism scheme instituted an extensive and permanent federal regulatory presence to deal with problems previously within the sole domain of the states. Congress created a new Office of Surface Mining (OSM) to oversee implementation, administration, and enforcement of SMCRA. (154) Congress intended that states have the option to assume "exclusive jurisdiction" to administer and enforce SMCRA, subject to compliance with minimum statutory standards and compliance with OSM's implementing regulations. (155) Moreover, state assumption of "exclusive jurisdiction over the regulation of surface coal mining and reclamation operations" was made specifically subject to OSM's oversight and enforcement power. (156) If an OSM-approved state fails to implement, enforce, or maintain its program in accordance with SMCRA, OSM must enforce part or all of such program or assume exclusive federal jurisdiction over all mining operations within the state. (157) SMCRA required an "interim" program of joint state and federal enforcement in the period before state primacy programs were approved, followed by a "permanent" regulatory program based on OSM-promulgated regulations. (158) The interim regulatory program was required to be based upon and to incorporate most of SMCRA's important permitting requirements. (159) Nine months after SMCRA's August 3, 1977 effective date, all surface mining operations regulated by a state were to be in compliance with interim program requirements. (160) Within six months of enactment of SMCRA, OSM was required to implement a federal inspection and enforcement program in the field that would remain until replaced by an approved state primacy program or a federal regulatory program was established. (161) Within one year of SMCRA's effective date, OSM was required to promulgate regulations defining the details of the "permanent regulatory program." (162) Problems immediately arose pertaining to OSM's administration of SMCRA's phased implementation. OSM's effort to promulgate permanent program rules produced one of the most extensive rulemaking proceedings in the history of administrative law. Two drafts were submitted for public comment; 57 public meetings and 25 days of public hearings were held; 589 public comments were received by OSM; 22 different task forces, composed of over 100 technical experts from more than 20 agencies, evaluated and revised the draft rules into their final form. (163) SMCRA's tight implementation time schedule and Congress's failure to fund OSM for the first seven months of its existence exacerbated tensions between the interested parties and provoked litigation seeking to force OSM to extend statutorily prescribed time schedules. (164) Congress had required OSM to develop interim and permanent regulatory programs from scratch, but failed to take into account the extensive technical, scientific, legislative, and regulatory work involved. The unreasonable timeline imposed on OSM also ignored the probability of continued coat industry and state political resistance to the strict federal regulation, oversight, and enforcement demanded by the Act. (165) C Coal Industry and State Opposition to Implementation, Administration, and Enforcement of SMCRA Not surprisingly, resistance to federal legislation by the coal industry and many state political and regulatory interests carried over to OSM's efforts during the implementation phase of the Act. Continuing conflict occurred between those from whom the SMCRA demanded cooperation: the states and the federal government. (166) The strident opposition of coal industry and state forces present during Congressional consideration of proposed legislation continued as OSM attempted 1) to carry on SMCRA mandated concurrent enforcement and 2) to create a totally new, complex, and comprehensive regulatory program. State, industry, and environmental groups challenged in court numerous provisions of OSM's regulations and the scope of OSM's regulatory authority. (167) Challenges to interim regulations included allegations that OSM arbitrarily failed to include a broad exemption and variance procedure, and that, inter alia strict water pollution control and stringent detection and enforcement regulations exceeded the scope of power delegated to OSM by Congress. (168) The United States District Court for the District of Columbia upheld OSM's rulemaking efforts, rejecting almost all of these challenges. (169) Industry and states also attacked the constitutionality of SMCRA in five lawsuits, alleging numerous constitutional defects including challenges based on the Commerce Clause, the Due Process Clause, the Contract Clause, the Equal Protection Clause, the Tenth Amendment, and the Takings Clause. (170) Nonetheless, the Supreme Court upheld SMCRA as constitutional. (171) In the quarter century since enactment of SMCRA, the environmental degradation and attendant adverse social and economic impacts on coalfield communities continue, albeit not at the catastrophic levels that existed in the pre-SMCRA years when coal mining was essentially unregulated. One of the best examples of such continuing regulatory failure can be seen in the failures of state and federal enforcement of SMCRA's requirements pertaining to huge mountaintop removal strip mines that have proliferated in the southern West Virginia coalfields. It is there, near the benighted former coal camps, that a specific SMCRA promise of environmental protection and local economic development was broken by coal operators and compliant federal and state regulators. IV. "ALMOST LEVEL, WEST VIRGINIA": (172) MOUNTAINTOP REMOVAL STRIP MINING A decade and a half after enactment of SMCRA, some believed the statute was reducing abuses of coalfield lands and people caused by conventional strip and underground mining. Notwithstanding a measure of success, some coalfield communities continued to feel the effects of inadequately regulated mining that had plagued them decades earlier. (173) Many of these post-SMCRA impacts were produced by new surface and deep mining techniques that had gained favor with the nation's biggest coal producers. A major transformation of the coal industry triggered this post-SMCRA departure from conventional mining methods. (174) Corporate mergers, consolidations, and bankruptcies accompanied intense competition between eastern and western coal mining operations. (175) A combination of all of these events foreshadowed the growth of "mountaintop removal"--a strip mining technique that existed only on a small scale before SMCRA. (176) One commentator observed: Because of [competition with] cheap western coal, mountaintop removal suddenly boomed in central Appalachia in the 1990s. Trucks and power shovels have grown to gargantuan sizes, and drag lines swing shovels holding up to 100 cubic yards of rock. Mountaintop mines that reduce ridges and peaks by hundreds of feet now sprawl across more than 2,000 acres. An estimated 400 square miles of southern West Virginia mountains and ridges have been leveled and 1,000 miles of streams buried beneath debris blasted, shoved, and dumped into narrow valleys. (177) The move to the use of large-scale mountaintop removal operations would make mining in Appalachia more efficient, productive, and--most importantly for coal operators--much less labor-intensive. (178) Mechanization and concomitant massive job losses attendant stripping operators' embrace of mountaintop removal were paralleled by the underground operators' adoption of new deep mining technology. (179) The coal industry's competition-driven movement to new mining methods in central Appalachia adversely impacted coalfield communities both above and below the earth's surface. (180) On both fronts, coal production and man-hour efficiency in Appalachian mines increased dramatically. (181) However, as mountain ridges were blasted apart and more miles of headwater streams were buried under huge valley fills, mine jobs continued to hemorrhage. Promises that mountaintop removal mining would spur job-creating commercial, industrial, and residential development went unfulfilled. A. Description of Mountaintop Removal Mining Methods SMCRA regulations define mountaintop removal as "surface mining activities, where the mining operation removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill ... by removing substantially all of the overburden off the bench and creating a level plateau or gently rolling contour, with no highwalls remaining." (182) As traditional contour and area mining rapidly declined during the 1980s and 1990s, growing numbers of mountaintop removal mines began clear-cutting the steep-sloped hardwood forests and chopping off mountaintops in eastern Kentucky and southern West Virginia. (183) The underlying coal seams there lie sandwiched in layers of rock and soil hundreds of feet thick. In mountaintop removal operations, each layer of the rock above a coal seam is blasted and removed, the coal is extracted, and then the next layer is removed until the removal of rock and coal layers is no longer cost-effective. Operators put some of the removed rock back on the flattened mountaintop. Because rock blasted from its natural state "swells," coal operators assert there is usually inadequate room available on the flattened mountaintop to place this "swell" or "excess spoil." (184) The spoil is dumped in adjacent valleys, often creating huge "valley fills." (185) A single valley fill may be 1,000 feet wide and extend several miles at the upper reaches of Appalachian headwater streams. (186) Over the course of more than two decades, the West Virginia Department of Environmental Protection (DEP) and its predecessors authorized the coal companies to bury at least 786 miles of West Virginia streams under valley fills, (187) Thousands of acres of hardwood forests were leveled). (188) The United States Fish and Wildlife Service found that "'the loss of these streams and their associated forests may have ecosystem-wide implications." (189) Beginning in the late 1980s, the size and number of mountaintop removal mines and their associated valley fills increased, especially in southern West Virginia, which has enormous reserves of high-energy, low-sulfur coal coveted by electric utilities. (190) Ordinarily, when a state grants a permit to conduct strip mining operations, a coal operator is required to restore mined land to its approximate original contour (AOC). (191) When Congress was debating SMCRA, central Appalachian coal operators and coal-state congressional representatives sought an exemption from the AOC requirement for mountaintop removal mining. Mountaintop removal mining, they argued, could produce flat land for development--a commodity in very short supply in the mountainous coalfields of West Virginia, Kentucky, Virginia, and Tennessee. (192) Congress accommodated these requests, but placed severe limitations on those situations where mountaintop removal would he allowed under a variance from the generally applicable AOC reclamation requirement. In order to qualify for a variance from the AOC requirement, SMCRA requires that a mountaintop removal permit applicant propose a postmining land use that falls in one of five specific categories: industrial, commercial, agricultural, residential, or public facility (which includes recreational facilities) (193) In addition, the permit applicant must also prove that the proposed postmining use constitutes an equal or better economic or public use of the affected land as compared to the premining land use. (194) An applicant seeking an AOC variance must also provide specific plans for its proposed postmining land use and accompanying assurances. (195) Finally, SMCRA requires that the applicant demonstrate that the proposed use would be consistent with adjacent land uses, existing state and local land-use plans and programs, and that all other requirements of SMCRA will be met. (196) In granting a mountaintop removal permit with an AOC variance, a state must impose certain specific public safety and environmental protection requirements on the permittee. (197) C. Media Expose of Mountaintop Removal impacts In a 1997 interview, longtime West Virginia coal industry lobbyist Ben Green told Business Week, "With mountaintop removal, you get 100% mineral recovery, you can't mine again, and you get better land use than you ever had in its natural state." (198) If by "better land" Greene meant "flatter" land then his statement was true. Mountaintop removal had created tens of thousands of acres of flat land. Greene's claims echoed the arguments that persuaded Congress to allow the practice only if the resulting flattened mountaintop was to be used as part of a coal operator proposed development that would create jobs for coalfield communities and promote local economies. Ben Greene was not alone in trumpeting the value of flat land. As they have from SMCRA's inception, coal industry and government officials continue to tout flattening mountain ridges as a panacea for economic development. There was, and is, one problem with the scenario--mountaintop removal has played a significant role in the precipitous decline in coal mine employment, and has flattened and deforested mountaintops that now lay barren, generating weeds rather than jobs. As explained below, a quarter century after enactment, SMCRA's promise to coalfield communities of shopping centers, industrial plants, and new affordable housing--all located on flattened mountaintops--has been broken. In August 1997, Penny Loeb, a Senior Editor at US. News & World Report, broke the story of mountaintop removal's adverse impacts on coalfield residents. (199) Her article, "Shear Madness," exposed to a national audience the social and environmental injustice attendant the large-scale expansion of mountaintop removal in the coalfields. (200) Loeb wrote: [C]oal companies and some state officials note that strip mining provides high-paying jobs--weekly pay averages $922. And some contend that West Virginians are better off with their mountains flattened--several dozen buildings, including four schools and three jails, have been built on them so far.... But the costs are indisputable, and the damage to the landscape is startling to those who have never seen a mountain destroyed. Topographic and landscaping changes leave some regions more vulnerable to floods.... And state employment records suggest the jobs argument is not very compelling. Mountaintop removal accounts for only 4,317 workers in the state less than 1 percent of its job force. Overall, mining employment in the state has fallen from 130,000 in the 1940s and 1950s to just 22,000 last year. (201) Loeb catalogued multiple impacts on coalfield communities caused by the proliferation of mountaintop removal mines:
Thirty floods have occurred in the past two years in areas where
watersheds were bared and redesigned, and several people have lost
their lives in such floods.
Whatever the role of mining in the state's overall economy, its
impact on nearby communities is devastating. Dynamite blasts needed
to splinter rock strata are so strong they crack the foundations and
walls of houses: Homeowners filed 287 blasting complaints with the
state in the past year. Trucks full of coal rumble past some people's
front porches at the rate of 20 an hour, 24 hours a day. Mining dries
up an average of 100 wells a year and contaminates water in
others. (202)
Loeb's report was followed by a comprehensive, fact-packed series of newspaper articles in the Charleston Gazette, beginning in 1998, which examined mountaintop removal mining and its impacts on the economy and people of the coalfields. (203) The series, "Mining the Mountains," was written by Ken Ward Jr., an award-winning investigative reporter. Ward's reporting exposed the myth promoted by two decades of coal industry propaganda. The claims of industry lobbyists, politicians, and regulators that mountaintop removal would bring economic development and prosperity to coalfield communities were shown to be false. 1. State Mountaintop Removal Permitting Receives Scrutiny The first article in the series described a DEP hearing on the application for the largest strip mine ever proposed in West Virginia. (204) The hearing was held in the gymnasium of an aging Logan County elementary school; more than 125 people jammed the narrow bleachers. (205) Ward described the scene as follows:
Just over the ridge from the school, Arch Coal Inc. had stripped
2,500 acres of the Logan County hills around Blair Mountain. The
company has applied for a permit to mine 3,200 more.
If state regulators approve the new permit, giant shovels and
bulldozers will eventually lop off the mountaintops of an area as
big as 4,500 football fields.
Residents of the tiny communities along W.Va. 17 complained Arch
Coal's existing mine already makes their lives miserable. Why, they
asked regulators at the hearing, should the company get a permit to
mine more?
Melvin Cook of Blair was the first to walk across the gym floor
to a microphone and speak up. He complained about the blasting.
....
"You can't bear it," Cook said. "It has torn my house all to
pieces." (206)
Residents of nearby communities were not the only people who attended the public hearing. A solid block of the gym's bleachers was filled with miners and their families who said that "they wanted jobs at the new mine. But they agreed the company should make sure mining doesn't disturb area residents." (207) The Gazette series told of giant machines that "towered over old-time shovels and bulldozers" used in earlier coal stripping. (208) Those monster machines "can literally move mountains," the newspaper related; only a few skilled equipment operators stood at the controls. (209) Gazette readers also learned that in twenty years nearly 500 square miles of the state had been strip mined; from 1994 to 1998, the average size of the new mines had doubled each year; and, in 1997, DEP had issued new permits totaling 31 square miles, an area larger than Charleston, West Virginia. (210) 2. State Mountaintop Removal Permitting Decisions Questioned by Environmental Protection Agency The Gazette also closely examined specific mountaintop removal permitting decisions by state and federal agencies. The series noted that Arch Coal, Inc.'s subsidiaries had been seeking agency approval to permit larger and larger mines which would bury long segments of mountain headwater streams. (211) Arch Coal's Hobet 21 mountaintop removal operation had finished stripping almost 10,000 acres of Boone County mountains by the end of 1995. (212) In 1997, the company proposed a new 2,000 acre mountaintop removal mine in neighboring Lincoln County, which would produce more than 30 million tons of coal over a decade. (213) Arch Coal's subsidiary, Hobet Mining, Inc., planned to dispose of "excess spoil" by burying two miles of Connelly Branch, a mountain headwater stream. (214) The United States Environmental Protection Agency (EPA) was the only regulatory agency charged with monitoring surface mining that raised questions about the enlarged scope of mountaintop removal permits being issued in West Virginia. In September 1996, an EPA Region HI official wrote to DEP, observing that "'Connelly Branch is the longest stream in West Virginia that has ever been proposed to be covered by a valley fill to our knowledge'" and its loss "'could possibly affect aquatic life in the Mud River, particularly in combination with other existing and proposed valley fills in the watershed.'" (215) EPA told DEP that it would object to issuance of the permit unless Hobet Mining considered alternatives to burying the stream. (216) However, within a few months, EPA retreated from this stance. (217) In June 1997, another valley fill permit caught EPA's attention. (218) A.T. Massey, Inc. had filed an application proposing to bury two miles of James Creek in Boone and Raleigh Counties. (219) EPA suggested Massey should consider altering its mining plans in order to reduce the amount of excess spoil dumped into the creek. (220) Within a few months, EPA once again retreated. (221) Officials of EPA's Region HI Water Division indicated, however, that it was "'still very concerned about the disturbing trend toward larger fills and increased stream impacts by coal companies, and wish[ed] to work closely with DEP to prevent these impacts where possible.'" (222) As its series progressed, the Gazette reported a third instance of EPA questioning a mountaintop removal mine permit application. (223) Pittston Coal had applied for a permit for a gigantic new mine in Logan County in late 1996. (224) In January and February 1998, DEP's mining and water resources offices issued permits for the Pittston mine, but EPA officials objected and raised questions. (225) The Gazette reported that the company negotiated with EPA and quickly agreed to reduce the size of the mine from 1,350 acres to 930 acres. (226) EPA responded by dropping its objections. (227) 3. Coal Industry's Initial Response to Media Investigations of Mountaintop Removal At the beginning of the "Mining The Mountains" series, Ken Ward Jr. explained the initial response of coal industry officials and state and federal regulators: "Coal operators say all of this attention is unwarranted. Some have hauled out standard jobs-vs.-the-environment arguments. Others insisted the fight over stopping strip mining ended decades ago--and that they won." (228) Arch Coal mine manager John McDaniel told Ward, "'I want everybody to understand that we have been trying to work with the community[.] ... It's not as one-sided as everybody tries to make it appear." 223 John Ailes of the DEP Office of Mining and Reclamation said, "'We think we're doing a daggone good job, but we could always do better.'" (230) Dan Sweeney, an environmental engineer in EPA's Region HI told Ward: "'We are definitely evaluating the overall issue[.] ... But at this point, we're just talking among ourselves[.] ... It's a little early to say what EPA will do right now.'" (231) D. Lawlessness: Regulators Ignore SMCRA's "Approximate Original Contours "Mandate As discussed in Section IV.B, supra SMCRA requires most strip mines to be reclaimed to their approximate original contours (AOC). (232) SMCRA, however, allows the AOC requirement to be waived for mountaintop removal mining operations in certain narrowly circumscribed situations. (233) In order to qualify for an AOC waiver, a permit applicant is required by SMCRA to propose commercial, industrial, residential, agricultural, and/or public uses for the land after it has been stripped, leveled, and reclaimed. (234) The obvious goal of waiving the AOC restoration mandate was economic development that would bring new jobs and prime the pump for coalfield community economies. The Charleston Gazette investigation raised serious questions about state and federal agency oversight of state decisions to waive AOC restoration requirements for mountaintop removal mines. Ken Ward Jr. described a visit to DEP's Logan County office and his discussions there with officials in charge of permitting mountaintop removal mines:
Ken Stollings points to the maps and charts on his office wall to
show how Hobet Mining will turn the rugged peaks and valleys around
Blair Mountain into flat plains and a few rolling hills.
Stollings, a Division of Environmental Protection engineer, shows
the changes to his boss, agency permit supervisor Larry Alt. Asked
if this proposal meets the legal mandate that mined land be
reclaimed to its "approximate original contour," Alt and Stollings
just laugh.
"We just can't stack it as high as God did," Alt says with a
shrug.
Approximate original contour, or AOC, is the heart of
the federal strip mining law. But among many West Virginia
regulators, it's becoming a joke. (235)
The Gazette reported that the AOC waiver rules were "routinely skirted by dozens of huge mountaintop-removal strip mines." (236) After coal companies blasted and ripped apart mountain ridgetops to reach multiple coal seams, state regulators allowed them to avoid the expense of restoring the land to AOC. Instead, DEP permitted coal operators to take the cheapest path: shoving and dumping the remains of mountains--millions of cubic yards of rock and dirt--on top of headwater streams in nearby valleys. (237) Information contained in DEP's own files revealed a systemic failure on the part of state regulators to apply SMCRA's AOC requirements to mountaintop removal mines. (238) The Gazette's investigation found that in 1997 alone, DEP had authorized twenty permits for mountaintop removal mines to level twenty square miles. (239) However, the newspaper's study showed that the companies obtaining these permits, "including [national coal production leaders] Arch Coal Inc., A.T. Massey Coal and Pittston Coal, rarely ask for or received approximate original contour exemptions for mountaintop removal." (240) A West Virginia Freedom of Information Act request revealed that only one-quarter of active mountaintop removal mines had obtained the AOC exemption. (241) Thus, 75% of active mountaintop removal mines in West Virginia were being operated in violation of state and federal law. Additional digging into DEP files led the Gazette to a memorandum written in the early 1990s by OSM officials that, for the first time, resembled an agency AOC policy. (242) Because the policy contained no guidance for permit reviewers on how to define AOC, it served as the basis for state officials' later defense that they had no idea what AOC meant when it came to mountaintop removal mines. (243) The upshot of this bureaucratic sleight of hand was that operators could lop hundreds of feet off mountaintops, dump "excess spoil" into valleys, and level off thousands of acres--all under the guise of meeting SMCRA's AOC requirement. By definition a mountaintop removal mine is one that removes entire coal seams running beneath a mountaintop. Many of the mines permitted without AOC variances reduced the elevation of mountain ridges by hundreds of feet. A mountaintop removal mine that reclaims mined land to its approximate original contours is obviously an oxymoron--but an oxymoron that regulators were willing to embrace so that coal operators could avoid SMCRA's strict economic development requirements applicable to mountaintop removal mining. The most egregious impact of DEP's failure to enforce the AOC requirement was the denial of jobs and permanent economic development that should have accompanied mountaintop removal mining operations. 1. The Response of Industry and Regulators to the Revelation that AOC Requirements Had Been Ignored for Two Decades Upon learning the results of the Gazette's study of DEP's systemic violation of AOC permitting requirements, coal lobbyists at first admitted that problems might exist. However, they insisted that only technical matters were involved. The president of the West Virginia Coal Association told the Gazette: "'It sounds like to me [like DEP] needs to take a look to see if they meet all the requirements[.] ... Apparently, there are some issues to be addressed, but they have little [to] do with environmental compliance.'" (244) An A.T. Massey public relations officer asserted, "'Massey Coal companies have complied with the reclamation regulations[.] ... On any permit that does not include an AOC variance, the plans for reclaiming the mine site meet state guidelines for AOC standards.'" (245) David Todd, an Arch Coal executive asserted, "'We have been applying for mining permits and they have been reviewed by and granted by DEP, with oversight by OSM[.] ... That's got to be pretty fair evidence that [mountaintop removal mines] are being approved and operated according to and in compliance with the law.'" (246) Roger Calhoun, supervisor of the OSM Charleston field office was questioned at a press conference where he appeared with visiting OSM Director Kathy Karpan. (247) Calhoun maintained that DEP was not issuing mountaintop removal permits without AOC variances. (248) When later confronted with a list of such permits, Calhoun said OSM would look into the allegations, (249) "'Maybe we should put the burden on the state to come up with some criteria,'" Calhoun said. "'It's something we might want to tighten down on. I don't think the state has paid enough attention to AOC and postmining land uses and configurations.'" (250) 2. A Promise Broken: Systemic Waiver of Mountaintop Removal Requirements Negate SMCRA 's Economic Development Goal a. Newspaper Investigation Discloses Agency Misfeasance The Gazette continued its investigation during the summer of 1998. (251) It examined the long-standing claims of coal industry advocates, government regulators, and politicians who had championed mountaintop removal as an economic development engine. In early August, the Gazette published a devastating article documenting how SMCRA's promise of economic development had been perverted by the West Virginia coal industry with the acquiescence of state and federal regulators. (252) The Gazette found that for more than two decades, SMCRA's mountaintop removal requirements had been consistently ignored by regulators and coal operators. (253) Coal companies had been allowed to flatten mountains and dump hundreds of millions of cubic yards of "excess spoil" in valleys obliterating hundreds of miles of headwater streams. Reporting from a ridge above the Kanawha River near Charleston, West Virginia, Ken Ward Jr. wrote:
Bullpush Mountain isn't a mountain anymore. It's a flat, grassy
meadow that stands out among the wooded hills along the
Fayette-Kanawha County line.
More than 25 years ago, Cannelton Industries Inc. chopped the top
off Bullpush to get at the coal underneath. The operation, started in
1970, was the first mountaintop removal mine in West Virginia.
Cannelton officials promised that if they flattened out the land,
they could more easily develop it. The company drew up plans to turn
Bullpush into a brand-new town, complete with churches, schools,
shops and a hospital.
None of that ever happened. No schools. No churches or shopping
centers. Cattle don't graze anymore on the pasture where Bullpush
Mountain used to be. Hay isn't grown there, either.
Bullpush Mountain isn't alone. Across the Southern West Virginia
coalfields, mountaintop removal mining is turning tens of thousands
of acres of rugged hills and hollows--nobody knows how many--into
flat pastures and rolling hayfields. (254)
The story of "development" of Bullpush Mountain, flattened by early mountaintop removal mining, is the tale of hollow promises, inflated expectations, and flat out lies. In 1970, Cannelton insisted that the postmining use of Bullpush Mountain would be "land development" and obtained a permit under the state law applicable prior to the enactment of SMCRA. (255) Hundreds of thousands of tons of coal were stripped and the area graded and seeded with grass. For a decade there was no development. In 1979, the county planning commission issued a report that said development on the site was simply not feasible because of the absence of services and utilities. (256) Nevertheless, only a year later Greenlands, a coal industry trade association magazine, bragged of Bullpush Mountain's potential for development. (257) The magazine included a map of the area, depicting "future locations of a light industrial zone, residential areas, a downtown business district, schools and a sewage treatment plant." (258) The promoters bragged that the 2,000 acre area could become the site of a city with a population of 10,000 to 12,000. (259) But just two years later, the coal operator amended its Bullpush Mountain permit, pulling the plug on development plans. (260) State regulators quickly approved the new postmining land use for Bullpush Mountain--"pasture and hay lands." (261) Almost twenty years later, mountaintop removal proponents again were boosting Bullpush as a prime target for development. In June 1998, West Virginia officials, economic developers, and coal industry officials on a tour of mountaintop removal sites praised what they saw at Bullpush--a scene which had not changed during the almost thirty years since the ridge had been flattened. (262) According to the Gazette, former State Senator Tracy Hylton, whose company had originally stripped and flattened Bullpush, "gave a rousing defense of mountaintop removal." (263) Hylton attacked the Gazette, saying, "'I'm sick and tired of all this that goes on in the newspaper today[.] ... There is a need for flat land for development in West Virginia. With mountaintop removal, we can get it.'" (264) The Gazette investigation examined far more than the false claims made about development potential of the flattened Bullpush Mountain. Its study found that over two decades, DEP had permitted more than fifty square miles for mountaintop removal mines; the plans for "economic development" at those mines were limited exclusively to pastures, hayfields, forests, or range lands. (265) In the thirty years since Bullpush Mountain had been "removed," not one West Virginia mountaintop removal permit has included plans for a manufacturing or industrial plant. (266) On the contrary, the Gazette's investigation showed that the most popular land use proposed for mountaintop removal sites was "fish and wildlife habitat." (267) Incredibly, while "fish and wildlife habitat" was not a postmining land use recognized by SMCRA, it accounted for almost one third of the total mountaintop removal acreage permitted by DEP. (268) b. The Response of Industry and Regulators to the Lack of Economic Development When confronted with the results of the Gazette's postmining land-use investigation, the West Virginia Coal Association's President agreed there had not been much development, but claimed it was not the fault of coal operators. "'Are you going to have a Toyota plant at Wharncliffe, West Virginia?'" Bill Raney asked. (269) Answering his own question, he said, "'Probably not. But I don't think the law obligates the mining industry to put up bricks and mortar. Our responsibility is to make sure the opportunity is there.'" (270) The President of the West Virginia Mining and Reclamation Association told the Gazette that SMCRA's requirements were outdated and "'too stringent for today's large mountaintop removal mines.'" (271) An official with DEP's Office of Mining and Reclamation said that all the involved parties needed to look at postmining uses: "'There's not a lot of pre-planning done in terms of development[.] ... There is a need for some long-term land use planning considerations. It's hard for us to say what's going to be out there and who is going to develop what and what the future holds.'" (272) E. Judicial Review: Coalfield Residents Turn to the Courts Contemporaneously with the media expose of DEP's bogus permitting of mountaintop removal mines, eight coalfield residents living near valley fills and a statewide environmental organization filed a SMCRA citizen suit against DEP seeking declaratory and injunctive relief. (273) In Bragg v. Robertson (Bragg), (274) the plaintiffs alleged, inter alia, that the Director of DEP was violating his nondiscretionary duties under SMCRA in issuing permits for mountaintop removal mines. (275) More particularly, they alleged that the Director consistently issued permits to mining operations without making requisite findings that assured the restoration of original mountain contours or, alternatively, economic development on flattened mountain tops. (276) They asserted the Director violated his federal- and state-law duties to "withhold approval of permit applications that are not complete and accurate and in compliance with all requirements of the state and federal program." (277) In the course of a hearing on the plaintiffs' motion for preliminary injunctive relief, the United States District Court Judge, Charles H. Haden, II, accepted the coal company intervenors' Invitation to visit mountaintop removal mines to see for himself how well mountaintop removal mines had been reclaimed. The judge visited and flew over most of the mountaintop removal sites in southern West Virginia, observing in a subsequent opinion: The Court's helicopter flyover of all mountaintop removal sites in southern West Virginia revealed the extent and permanence of environmental degradation this type of mining produces. On February 26, the ground was covered with light snow, and mined sites were visible from miles away. The sites stood out among the natural wooded ridges as huge white plateaus, and the valley fills appeared as massive, artificially landscaped stair steps. Some mine sites were twenty years old, yet tree growth was stunted or non-existent. Compared to the thick hardwoods of surrounding undisturbed hills, the mine sites appeared stark and barren and enormously different from the original topography. (278) In a later opinion in the same case, the court discussed the impacts of mountaintop removal valley fills on the streams they bury: When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments. The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream, there is no water quality. (279) Ultimately, after first granting preliminary injunctive relief enjoining an Arch Coal subsidiary from initiating mountaintop removal mining on what was planned as the largest strip mine ever permitted in West Virginia, the district court granted the plaintiffs' motion for a permanent injunction. (280) The scope of the injunction was narrow; it "enjoin[ed] the Director from further violations of the nondiscretionary duties ... and from approving any further surface mining permits under current law that would authorize placement of excess spoil in intermittent and perennial streams for the primary purpose of waste disposal." (281) The court explained that this injunction was purely prospective and had no impact on permits that had already been issued. (282) Immediately, West Virginia's Governor, its congressional delegation, coal industry lobbyists, and the UMWA leadership attacked the court's decision. (283) Exhuming the well-worn jobs versus environment conflict, they argued that the decision would cripple West Virginia's economy and reduce mine production and jobs. (284) The director of DEP announced that no new permits for mountaintop removal mines would be granted. (285) Coal companies using mountaintop removal mining shut down their mines and laid off all of their miners. (286) West Virginia's senior senator, Robert C. Byrd (D-W. Va.), unsuccessfully attempted to legislatively reverse the court's ruling, trying to attach a rider to a major appropriations bill. (287) The industry and the UMWA launched an expensive television and newspaper advertising campaign throughout the state forecasting doom for the state's economy and the loss of thousands of jobs. (288) DEP and the coal companies predicted that the injunction would cause serious economic harm. The district court replied that it was "in no position ... to take an informed measure of the harms predicted," and that these predictions were based on "invective" and "irrational fears," observing that: [A] firestorm of reaction has come forth from Defendants and state government officials, predicting that the Court's injunction will cause unprecedented economic and social dislocation throughout West Virginia. These opinions are echoed in the affidavits filed by Defendants supplementing their motions to stay. The dire predictions are further bolstered by third party statements of what the Court's Opinion holds. As noted, those "opinions" not originating with the Court reflect, at best, misunderstandings and, at worst, egregious misrepresentations, of significant portions of the ruling. Additionally, many coal workers have been laid off ... and the Governor has ordered State government to budget-cut to accommodate a ten percent decrease in expected tax revenues. (289) Although it rejected industry and DEP assertions, the district court granted a stay of the injunction pending appeal of its decision to the United States Court of Appeals for the Fourth Circuit. (290) In the spring of 2001, the Fourth Circuit reversed the District Court, holding that the Eleventh Amendment to the United States Constitution barred the suit against the state. (291) Notwithstanding the Fourth Circuit's reversal, evidence uncovered in Bragg added to the accumulation of facts showing that coal industry lobbyists, politicians, and government regulators had perverted SMCRA to avoid meeting the economic development requirements attendant mountaintop removal mining. Often working in concert, these forces deprived coalfield communities of the economic development opportunities promised by SMCRA, even as they continued to spew propaganda about the need for flat land as a panacea that promised a new era of coalfield economic prosperity. From its inception, the story of SMCRA's administration and enforcement is a tale of top federal and state officials ignoring their duty to protect the coalfield environment and the rights of coalfield citizens from coal operator excesses. Instead of embracing these duties, they chose to manipulate the interpretation of the law to curry favor with those whom they axe required to regulate. In the process, decisions of OSM and state regulators allowed coal companies to greatly expand the use of mountaintop removal while avoiding the costs of compliance with SMCRA's strict mountaintop removal requirements. (292) V. COALFIELD ENVIRONMENTAL INJUSTICE TAKES A NEW FORM The inability or unwillingness of federal and state regulators to interpret and enforce SMCRA to effectuate the Act's promise to protect coalfield citizens and their property is not surprising. Indeed, as noted above, Congress expected regulatory failure to occur when it emphasized the historic tendencies of state governments to give short shrift to the interests of coalfield citizens while protecting local coal industry interests. (293) In light of this history, SMCRA contained two major components intended to neutralize states' natural tendency to favor coal companies over environmental protection and the rights of coalfield communities: 1) federal oversight of state mining regulatory programs, and 2) citizen rights to participate in the administration and enforcement of the Act. As discussed above, OSM has proved to be woefully ineffective in policing state regulatory programs, siding with the coal industry on many major issues. The combined impacts of state and regulatory malfeasance and misfeasance and coal industry chutzpah has left coalfield citizens alone to fend off the incursions of property rights and environmental harm caused by modern, high-extraction mining techniques such as mountaintop removal. Thus, throughout the coalfields, citizens have organized at the grassroots level in an effort to protect their own interests. (294) Such organization would appear to be essential if the coal industry juggernaut, aided by politicians and regulators, is to be restrained from literally wiping out whole coalfield communities. At first blush, the specter of wholesale destruction of entire communities might appear to some to be a gross exaggeration. It is not. The very existence of some former coal camps presents an obstacle to corporate plans to maximize the recovery of coal reserves and profits derived therefrom. Such communities are quite literally "targeted" for elimination. As discussed below, the evidence of such corporate plans and agency acquiescence is well documented. Equally well documented is the approach of many coal companies to communities where elimination is not achievable--they simply carry on mining-related activities as if their coalfield neighbors do not exist. Thus, the corporate expectation, or at least the hope, is that communities will suffer in silence the infringements of private property rights that would never be tolerated in the upscale suburbs where most politicians, regulators, and coal company managers live. Among the tools available to coalfield communities for use in resisting the new wave of coal mining externalities are statutory citizen suits and time-tested common law remedies. Three themes run throughout this Section: 1) the paradox of a jobless coal boom at the close of the twentieth century and the continued joblessness and poverty of coalfield communities; 2) the impacts of coal industry abuses and regulatory agency failures in the face of the highly disruptive forms of modern, full-extraction mining operations; and 3) the statutory and common law rights and remedies that hold out the promise of bringing at least a small modicum of environmental justice to coalfield citizens. A. Paradox in the Coalfields: Coal Production Booms While New Mining Technology Alters the Environment and the Economy Stagnates The following discussion shifts the attention of this Essay to an examination of the paradox of record coal production attendant expansion of mountaintop removal mining operations and the reality of life in Appalachian coalfield communities where that coal is being produced. (295) Nowhere does the now century-old struggle of coalfield citizens for environmental, economic, and social justice come into clearer focus than in the former coal camp communities of southern West Virginia. In an insightful op-ed piece, Dan Radmacher, former Charleston Gazette editorial page editor, observed that coal-producing counties in West Virginia, Kentucky, and Virginia are much poorer than coal-producing counties in western states. (296) Radmacher noted that in Mingo County, the heart of the so-called "Billion Dollar Coalfields," the median household income is $12,000 less than the national average. (297) "Those left in McDowell County[, West Virginia,]" Radmacher reported, "am surrounded by empty houses and businesses, which has to be a psychological burden as well as a barrier to economic development." (298) A recent "regional profile" published by a West Virginia business think tank asked: "Are West Virginia's 'billion dollar coalfields' on the cusp of change and economic development?" (299) The profile observes that "Today, a large percentage of the coal mined in West Virginia is from strip [mining], requiring fewer people. This means fewer jobs, lack of a well-planned infrastructure for communities and an educational system that suffers from all of these factors." (300) The profile's author candidly admits what is obvious to the most casual observer: "One of the most important things in courting corporations is to have a strong infrastructure, including roads, sanitary systems, water, airports and broadband cable, many are lacking here.... " (301) On this point R.W. Wilkinson, president of a coalfield bank, makes the point that "'every business that looks to locate in any community expects that area to have basic services available. This has been ignored for many years and is today very expensive to develop." (302) While billions of dollars of coal have been extracted from West Virginia's mountains, the coal industry power has enabled it to funnel much of the wealth generated by mining to out-of-state interests, leaving little for the people whose labors produced that wealth. Historian John Alexander Williams finds the paradox to be a theme of West Virginia history. (303) "In its repetitive cycle of boom and bust, its savage exploitation of men and nature, in its seemingly endless series of disasters, the coal industry has brought grief and hardship to all but a small proportion of the people whose lives it has touched." (304) As West Virginia enters the twenty-first century, one might ask where the money will come from to pay to catapult the coalfield infrastructure into the new century and fund woefully under-funded school systems? Coal is the only game in town, so to speak, and it is not hiring. Nor is it paying sufficient taxes to support modernization of coalfield infrastructure or the dire need for educational system improvements. As Professor Williams observes, "Much of West Virginia's history has revolved around a struggle for the state's resources" including "struggles over the regulation and taxation of extractive industries" and challenges to the control of natural resources by absentee corporate owners. (305) "The enduring issue," he cogently argues, "is the extent to which the use of West Virginia resources will be governed by considerations of local benefits and needs. (306) As the following discussion reveals, politicians, the local elites, and the coal industry continue to give short shrift to considerations of local needs. Environmental, economic, and social justice in the coalfields remain goals yet to be achieved. B. Targeting Coalfield Communities for Destruction As mentioned above, some coal companies targeted for destruction communities located near their mountaintop removal mines. The facts are irrefutable, such corporate plans are not apocryphal--they exist and have already been successful in eliminating some communities. Such plans fend their origin in a century of time-honored disdain many coal industry managers have exhibited for miners, their families, and coalfield communities. Of course such plans are not publicized and are camouflaged by corporate public relations specialists. The industry "PR" spin always seems to revolve around the threat of job losses ff a company is held to account for operations which create nuisance conditions no middle-class community would long endure. Nonetheless, evidence of such plans and tactics is not difficult to find. Michael Janofsky of the New York Times visited West Virginia in 1998 to investigate and in a front page article reported: Dynamite explosions that cause flying rocks as well as cracks in walls and ceilings far from the blast site are a constant problem for people living nearby. They have caused many residents to accept buyouts from the coal companies, who offer $100,000 and more for some homes. While the price may seem generous, many residents say it barely compensates for the cost of moving to new communities, finding new jobs and buying other homes. But the difficult choice of enduring months of noise, dust and rocks or abandoning towns where relatives have lived for generations is beyond reasonable for many residents of southern West Virginia. (307) Patricia Bragg lived in a former coal camp at Pigeon Creek in Mingo County, West Virginia. Bragg told Janofsky that "'The bottom line, whether they offer you a fair price or not, is why do I have to move? ... As an American, I can choose where I want to live. If I choose to live in a hollow, call me a hick or a hillbilly, but that's where I want to live.'" (308) At the time of Janofsky's visit, 84-year-old Sylvia Weekley and her son James lived in Pigeon Roost Hollow near Blair Mountain in Logan County. (309) Janofsky found that "for the Weekleys [a buyout was] no longer an issue. Unlike dozens of their neighbors, they ... refused all offers from Arch [Coal]. Even in the face of thunderous blasting and a reconstructed valley that could come within 300 feet of where they live, they have vowed to stick it out." (310) James Weekley told the reporter, "'I'm not leaving[.] ... This is my home, and they are destroying what God created. I'm beginning to know how the Indians felt, and I've told the coal companies that the only way they'll push me out is with a bulldozer. I'm too old to change my rife style.'" (311) In a public forum series held at the University of Charleston (West Virginia) in the fall of 2003, Massey Energy CEO Don Blankenship saw the situation differently. "'If you do away with any mining method ... you take away jobs and the use of private property[.] ... without coal, communities are devastated,'" Blankenship argued. (312) The comments of coalfield activist Julia Bonds of Coal River Mountain Watch put Blankenship's arguments into perspective. (313) Bonds and nine generations of her family had lived in Marfork Hollow fifty miles from Charleston. (314) Bond's family was the last to sell its Marfork home to Massey Energy. (315) No one else remains but Massey and its mining operation. Bonds related her experience with Massey: Massey Coal [Company] moved in there around 1994. Now, I'm used to coal mining--I'm from a coal mining family--but I was not prepared for what Massey brought down on our heads in Marfork. The reserves they're mining now are not the clean reserves they were mining in the '40s, '50s, and '60s. These reserves create more waste than coal. The air pollution, the coal dust, is unbearable in that little community. My grandson now has asthma, and my home and my neighbors homes were damaged by coal dust. (316) Bonds also told of the fish kills caused by Massey's mining in the stream near the hollow: "'My family, for generations, has enjoyed that stream, but we never went back in the river again. We also witnessed several black water spins [of coal waste]. Those are so thick they're like pea soup, with big chunks in it.'" (317) Summarizing her feelings, Bonds told an interviewer, "'That was my home. Living in a hollow in West Virginia is unique. You feel so protected, its so peaceful and quiet--until a mining company moves in, of course. They were completely indifferent to the people that lived there.'" (318) Finally, after every other family in Marfork had moved, Bonds retained a lawyer and negotiated the sale of her home to Massey. (319) Another example of a coal company carrying out plans to eliminate old coal camp communities is Yolyn, located in Logan County, West Virginia, about 12 miles from the town of Logan, the county seat. In summer of 1997, Yolyn existed; by November of that year it was gone. (320) Residents attribute the destruction of their community to a nearby large mountaintop mine operated by Arch Coal. (321) An account of what happened to Yolyn is posted on a website dedicated to coalfield communities and their struggle for environmental justice: The demise of Yolyn seems to have begun at the end of June when a hard rain fell in the area. Part of a valley fill about a mile beyond Yolyn collapsed into the road. So much earth and rocks filled the road that state highway equipment couldn't move it. The mine had to bring in its own larger shovels and trucks. The state Division of Environmental Protection issued a violation for the slide. Several of the residents filed complaints. Lawsuits were threatened. (322) Shortly thereafter, the owner of the former company town began evicting its residents. (323) Many residents of Yolyn hold roots there extending back many decades. Yolyn was a community containing a mixture of old coal camp houses and mobile homes. (324) The land upon which the village was located was owned by Dingess-Rum Land Co., one of the large landholding companies that own thousands of acres of surface and coal in southern West Virginia. (325) Dingess-Rum owned many of the old camp houses. (326) "According to one resident of nearby Chambers, the people who lived on Dingess-Rum property had been promised they could stay there by the former manager of the company." (327) Yolyn residents relied on the promises of the former manager, believing that they would always be able to live there. (328) Many Yolyn residents received some monetary compensation from the land company, but many had difficulty finding affordable housing elsewhere. (329) "After the residents moved out, the houses were burnt in suspected arson fires." (330) About every three nights during the early fall, fire trucks would roar into the community. (331) In a January 11, 1998 letter to the editor of The Logan Banner, Jane Dalrymple wrote about her experience of being evicted from her home in Yolyn:
I am one of the many people who rented a home from Dingess-Rum
properties at Yolyn, that was forced to leave my home. [My] family
has lived on Rum Creek for as long as I can remember and has
attended Bethel Chapel for over 50 years. [R]um Creek has always
been a family-oriented community, where our children were safe and
happy.
The house we were renting was not falling down. My husband and I
moved into the house, laid rugs, and put in ceiling fans. The house
we left was in better shape than most of the houses we looked at to
buy since our eviction notice. We were not paid any money to help
remodel the house when we moved in, nor were we paid for these
renovations when we were forced to leave. (332)
Dalrymple wrote emotionally of the impact of being forced from her home and community:
These communities hold so many memories for us. Now [when] you drive
up Yolyn, you cannot even see where our homes had once been. [T]hese
homes were torn down as soon as we moved out. [S]ome were torn down
before we got all our personal belongings out.
The saddest part is that Dehue Church, Slagle Church, and our
Bethel Chapel are gone or will be destroyed. The only thing left in
this community are a few lonely trailers waiting for a place to
go. (333)
The coal industry has long used the "jobs card" to frighten coalfield communities. Whether it has been fighting UMWA organizing, fair taxation of coal reserves, limitation on the weight of overloaded coal trucks, black lung legislation, or mine safety and environmental regulation, this tactic has resonated among a populace desperate for decent jobs at a living wage. Thus, the industry and those who carry its water have achieved considerable success in portraying the public policy choice as a stark one between jobs and whatever measure has been proposed to advance broader public interests. (334) Jane Dalrymple's letter to the editor reflects community peer pressures grounded in the ever present fear of losing existing jobs. Like most coalfield residents adversely impacted by coal company decisions, Dalrymple took pains to make clear that she was a friend of coal; but, she concluded, "My opinion of coal mining is changing." (335) Dingess-Rum manager Greg Wooten responded to Dalrymple and other critical letters that appeared in The Logan Banner, explaining that just because there were a few letters to the editor I really don't feel they represent the majority. You are always going to have those that complain when you are running a business." (336) Wooten went on to explain that his company had the legal right to evict families from the company houses: "By allowing people to rent a house, in no way obligates this company to provide them with housing forever." (337) Wooten placed the blame squarely on the people of the community: "It is true that some have lived on our properties for many years, but that was their decision." (338) Marfork Hollow, Dehue, and Yolyn are but examples of the respect coal company managers have for families still occupying old coal camp houses as month-to-month tenants. (339) As Greg Wooten argued, coal companies are well within their legal rights to evict long-time residents and demolish communities that have existed for a century. No question about it. (340) But, Yolyn and Dehue fall within the category of old coal camps where the company houses were not sold to their occupants in the 1950s and 1960s, but were retained and rented to the occupants. Because residents of such communities pay rent and are essentially tenants at will, there are no legal impediments and corporate owners may destroy these communities with impunity. But what of the houses no longer owned by "the company"--the homes that had been purchased by miners? Surely, the uninitiated might say, modern coal company managers will respect the rights of citizens who still live in those communities. Arch Coal, one of the nation's top coal producers, operates several huge dragline mountaintop removal operations in the "billion dollar coalfields" of southern West Virginia. (341) When allegations were made that Arch's mining operations had devastated former coal camp communities near one of its largest mountaintop removal operations in Logan County, West Virginia the company flatly denied the charges. Arch spokesman David Todd assured a Washington Post reporter that Arch was "'committed to protecting the environment and respecting West Virginia's mountain heritage.'" (342) Interviewed on the nationally televised ABC News Nightline program, Todd told viewers that Arch Coal "continue[s] to try to work with that community and to find ways to minimize our temporary presence there." (343) However, Todd's statements were demonstrably at odds with reality. The following discussion reviews the history of the conflict between the coal companies operating a huge mountaintop removal complex near Blair Mountain in Logan County, West Virginia and home owners residing in former coal camps located in the midst of Arch's Dal-Tex operations. C. Mountaintop Removal at Blair Mountain: A Case Study of Environmental Injustice in the Coalfields (344) 1. The Dal-Tex Mountaintop Removal Complex and Neighboring Communities In the mid-1980s and early 1990s, vast, strippable coal reserves were purchased in the heart of the billion dollar coalfields of southern West Virginia, and strip mining of these coal seams began in earnest. The people of the old coal camps located near these mines began to feel the negative effects of coal mining--without the benefits. The loss of thousands of coal mining jobs during the previous three decades of industry decline was not reversed. Rather, as coal production began to rise to record levels, mining jobs continued to be lost to a new era of mechanization in underground and strip mining. Communities located near these new, highly mechanized mines experienced increased adverse impacts from larger and larger mines that invaded the peace and solitude that they had begun to enjoy. Coal camp residents struggled to maintain some semblance of normality as small communities were engulfed in blasting vibrations, dust, noise, and flooding emanating from mine operations. (345) In 1992, Ashland Coal, Inc. purchased Dal-Tex Coal Corp. and 22,000 acres of property near historic Blair Mountain, the site of the last battle of the mine wars. (346) In the deal, Ashland paid $242 million for 220 million tons of low-sulfur coal. (347) Ashland Coal and Arch Mineral Corp. merged in July 1997, forming Arch Coal, Inc., one of the nation's biggest coal producers. (348) At the time of its 1992 purchase, Ashland Coal executives had big plans for the Dal-Tex complex. Using high explosives and enormous equipment, including giant, twenty-story-high crane-like draglines, huge rock trucks, and gigantic bulldozers, these mines would apply state-of-the-art mountaintop removal mining techniques to turn the huge tract into what would be one of the largest contiguous mountaintop removal mines in Appalachian history. First, as many as twenty coal seams underlying high mountain ridges would be peeled off. Preceding the extraction of each seam, miners would drill into underlying rock layers and insert explosives and then blast this "overburden" apart. (349) The fractured rock overburden, or "spoil," would then be scraped off by the dragline bucket and dumped into the narrow valleys running out from the main ridges. This process would be repeated as the overburden of each coal seam was blasted apart, coal extracted, and spoil dumped into valleys containing headwater streams. The extracted coal would be hauled to coal stockpile areas and eventually loaded onto 120-car coal trains on a track that ran through the small former coal camp of Monclo. As is typical hi such large corporate acquisitions, before inking the Dal-Tex acquisition, Ashland performed a "due diligence" evaluation to determine potential risks and costs attendant the property to be acquired. Like the astute businessmen they were, Ashland executives had done their homework. They knew that Dal-Tex's enlarged stripping operations had not been well received by the residents of nearby former coal camps like Monclo. Some families in Monclo had even filed lawsuits alleging that mining operations had disrupted their lives. (350) In 1991, Monclo residents had protested "choking" dust blowing from the Dal-Tex mine complex into nearby communities. (351) "Blasting, heavy equipment operation and coal trucks leave a film of dust on the area that reappears |