Herald-Leader Editorial

Judge's ruling: Coal over people

September 11, 2013 

Study the photos below and ask yourself: If the mountains in the top photo were dynamited, scraped and dumped on head water streams like the mountains in the bottom photo, would the Kentuckians who live in the valley below experience a significant change in environmental quality?

If you said "no," congratulations, you have what it takes to enforce environmental laws for the Army Corps of Engineers and maybe even be a federal judge.

Senior U.S. District Judge Thomas B. Russell recently upheld a Corps decision that a 756-acre surface mine near the Knott-Perry county line above the communities of Sassafras and Vicco would "not significantly affect the quality of the human environment."

He later temporarily stayed his ruling to decide whether to allow time for an appeal.

Pam Maggard, one of the humans whose environment would be most directly affected and who is challenging the permit, knows better. "If we've polluted the water and destroyed the natural beauty, nobody is going to want to visit or live here," she told a Herald-Leader reporter.

Her point stretches beyond her hometown of Sassafras to an entire region struggling to envision an economic life after coal.

In addition to the Corps, the Kentucky Department of Mine Permitting and the U.S. Environmental Protection Agency signed off on scalping the mountains and burying 3.5 miles of stream.

(The EPA delayed the permit until James River Coal subsidiary Leeco agreed to scale back the mine's size and the number of valley fills, pay $752,047 into a stream mitigation fund and restore a stream in Wolfe County.)

This official complicity in ruining a place that 700-plus Kentuckians call home comes as no surprise. What's amazing is that so many people complain the coal industry is overregulated

Russell, a Clinton appointee from Paducah, upheld the Corps on procedural, not substantive, grounds. The Corps followed all the required steps, the judge ruled, even though the challengers made "compelling and well-documented arguments" that the Corps' decision was wrong.

Russell absolved the Corps for failing to consider the mine's effect on water already degraded by earlier mining, saying the state enforcement agency could have done that.

Interestingly, Russell also laid out a primer on how the law gives government agencies authority to protect the public. The question that will haunt future generations is why the agencies so often chose to protect the coal industry instead.

As Russell detailed:

■ The National Environmental Protection Act requires a "hard look" at environmental impacts, yet the Corps decided there was no need for an impact study of the James River permit.

■ The Corps' district engineer can veto permits that "would be contrary to the public interest."

■ A long-standing executive order requires consideration of whether low-income populations would be disproportionately affected. Forty percent of those who live within 1.5 miles of this mine site are poor.

■ The Surface Mining Control and Reclamation Act is supposed to "protect society and the environment from the adverse effects of surface coal mining." Its enforcement has been delegated to the state.

■ Peer-reviewed studies have linked harmful health outcomes, including birth defects, to living near surface mining. The Corps refused to consider this evidence.

The Corps gave much more weight to the jobs, money and energy that might be lost by denying the permit than to the harm residents would suffer from living next to a 756-acre surface mine.

If regulators and judges — and their children and grandchildren — had to live with the consequences of their decisions — as the people of Sassafras and Vicco and their descendants must — the officials might gain a clearer view of the public interest.

They might even recognize that people who live near coal mining are humans whose environment should be protected.

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