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From Pick and Shovel to Mountaintop Removal: Environmental Injustice in the Appalachian Coalfields

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From Pick and Shovel to Mountaintop Removal: Environmental Injustice in the Appalachian Coalfields Law Faculty Scholarship WVU College of Law Winter 2004 From Pick and Shovel to Mountaintop Removal: Environmental Injustice in the Appalachian Coalfields Patrick C. McGinley West Virginia University College of Law, [email protected] Follow this and additional works at: https://researchrepository.wvu.edu/law_faculty Part of the Environmental Law Commons, and the Oil, Gas, and Mineral Law Commons Digital Commons Citation McGinley, Patrick C., "From Pick and Shovel to Mountaintop Removal: Environmental Injustice in the Appalachian Coalfields" (2004). Law Faculty Scholarship. 79. https://researchrepository.wvu.edu/law_faculty/79 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of The Research Repository @ WVU. For more information, please contact [email protected]. FROM PICK AND SHOVEL TO MOUNTAINTOP REMOVAL: ENVIRONMENTAL INJUSTICE IN THE APPALACHIAN COALFIELDS By PATRICK C. MCGINLEY" In this Essay, ProfessorMcGinley examines a century of conflicts between the coal mining industry and the people of the "billion dollar coalfield" communities of southern West Virginia whose labors proided fuel for the industrialrevolution, two world wars, and the energy demands of the nation. The Essay identifies a troublingparadox Iighly efficient new mining technologies, including so-called "mountaintopremoval" st'p mining, have resultedin the loss of tens of thousands of well paying jobs while coal production has reached record levels and many coalfield communities remain mired in economic stagnationandpoverty. The Essayidentifies provisions of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) that require commercial, residential,and industrialdevelopment as a prerequisite to permitting the radicalalteration of the environment occasioned by mountaintop removal mining ProfessorMcGirdey makes the case that government regulators missed the opportunity to bring permanent economic benefits to coalfield communities by refusing to enforce this economic development mandate of SMCRA. Instead, the Essay contends, regulatorsoften choose to align themselves with coal industryinterests while turning a blind eye to the adverse environmental impacts and property damage visited by mountaintop removal and other modern mining methods on those who still lve in the old company towns or "coalcamps"of the region. The Essay exposes the plan and motive ofsome coal companies to target for extinction some communities located near modern large- scale mining operations. The plan was simple-conduct high intensity mining operationsin close proximity to remote communities. When the © Patrick C. McGinley, 2004. Professor of Law, West Virginia University College of Law, 1975- 2004. J.D., Duke University School of Law; A.B., Dickinson College. The author served as plaintiffs' counsel in the Bragg v. Robertson and Moore v. Hobet MLning, Inc. cases discussed in the Essay, and regularly represents coalfield plaintiffs in litigation against state regulatory agencies and coal companies. The author expresses his appreciation to West Virginia University College of Law's Arthur Hodges Fund for the assistance given to support the completion of this Essay. ENVIRONMENTAL LA W [Vol. 34:21 nuisance conditions createdby the mining became difficult to bear,the belief was that those affected would choose to sell out to the coal companies and move away from communities that had been family homeplaces for decades. In at least one area, a major national coal company conditioned its purchase of such homes on the sellers' agreement to move away and never return to the area for the rest of theirlives. The Essay concludes by identifying a movement among some influential West Virginia interests "to let naturalselection play out" In synch with the coal companies' desire to eliminate rural coalfield communities near mountaintop removal mines, this Darwinian view envisions nonviable communities becoming 'ghost towns." The conclusion observes that the century-long struggle of coalfield communities for environmental, economic, and socialjustice is likely to continue and that those who would destroy these communities in the name of eliminating "ruralsprawl" or maximizing profits may be surpoised at their resilience. Steeled by a century of oppression, the Essay suggests that the people of coalfield communities are likely to fight back. I. INTRO DU CTIO N....................................................................................................................... 23 II. COAL MINING AND APPALACHIAN COMMUNITIES: A HISTORY AS DARK AS THE MINES THEMSELVES .......................................................................................... 24 A. Union Battlefieldsin Appalachia....................................................................... 28 1. The Mine Wars: 1900-1932.......................................................................... 28 2. The New Deal andthe Rise of the UMWA: 1932-1941 ............................ 30 3. The Second World War. 1940-1945........................................................... 32 4. PostwarEconomic Decline in the Appalachian Coafields 1946-1960............................................................................... 33 B. The Coal Camps After World WarIl.................................................................. 34 1. The CoalBust of the 1960s: New RelationshipsBetween Coal Camp Residents and the Companies.................................................................. 35 2. The 1970s CoalBoom.................................................................................. 42 3. The Coal Camps.- 1980 to Present............................................................. 43 III. REGULATION OF THE ADVERSE IMPACTS OF COAL MINING ............................................. 47 A. HistoicalOverview of the Pre-SMCRA Period................................................ 48 B. SMCRA 's CooperativeFederalism Approach to Regulation ......................... 51 C. CoalIndustry and State Opposition to Implementation, Administration, andEnforcem ent ofSM CRA .......................................................................... 53 IV. "ALMOST LEVEL, WEST VIRGINIA": MOUNTAINTOP REMOVAL STRIP MINING ................. 54 A. Descriptionof MountaintopRemoval MiningMethods ................................. 56 B. SMCRA 's StrictLimits on Mountaintop Removal Mimg ............................... 58 C Media Expos6 of Mountaintop Removal Impacts.......................................... 59 1. State Mountaintop Removal PermittingReceives Scrutiny................... 61 2004] FROM PICKAND SHOVEL TO MOUNTAINTOP REMOVAL 23 2. State MountaintopRemoval PermittingDecisions Questioned by EnvironmentalProtection Agency ..............................62 3. Coal Industry's InitialResponse to Media Investigations of Mountaintop Rem oval ...............................................................................64 D. Lawlessness RegulatorsIgnore SMCRA "S"Approximate Original Contours"Mandate ........................................................................................... 64 1. The Response ofIndustry and Regulatorsto the Revelation that AOC Requirements Had Been Ignoredfor Two Decades................... 68 2. A PromiseBroken: Systemic Waiver of MountaintopRemoval Requirements Negate SMCRA "SEconomic Development Goal .............69 a. NewspaperInvestigation DisclosesAgency Msfeasance.............. 69 b. The Response oflndustryand Regulators to the Lack of Economic Developm ent.................................................................. 71 E JudicialReview: CoalfieldResidents Turn to the Courts.............................. 72 V. COALFIELD ENVIRONMENTAL INJUSTICE TAKES A NEW FORM ........................................76 A.Paradox in the Coalfields: Coal ProductionBooms While New Mining TechnologyAlters the Environmentand the Economy Stagnates............. 78 B. Targeting Coalfield Communities for Destruction.......................................... 79 C. MountaintopRemoval at BlairMountain: A Case Study of EnvironmentalInjustice in the Coalfields..................................................... 85 1.The Dal-Tex MountaintopRemoval Complex and NeighboringCommunities ....................................................................... 85 2. Mountaintop Removal M iing Impacts Stir Community Resistance......... 87 3. NationalAttention Is Drawn to MountaintopRemoval Mining at BlairMountain ........................................................................................... 91 4. FactsEmerge About the Coal Company's Planfor "Working with the Community to Minimize Its Temporary Presence There" When Citizen's Seek ReKef in Court .................................................................92 5. A Plan for "Workng with the Community"Is Developed at the B eginning......................................................................................... 94 6. Option to PurchaseAgreem ents .................................................................96 7 Bogus Dust Monitoring Program............................................................... 98 V I.C O N CLU SION ......................................................................................................................10 1 I. INTRODUCTION Travelers entering Williamson, the county seat of Mingo County, West Virginia, pass a faded roadsign that reads: "Welcome to the Billion Dollar
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