No federal agency protects citizens from mining: Court decision frees Corps of obligation

March 27, 2014 

By Trip Van Noppen

"It's not our job."

That's the Army Corps of Engineers' response to claims that the agency failed its obligation to consider the impact on human health when it issued a permit for an Eastern Kentucky mountaintop removal mine, Leeco Inc.'s Stacy Branch mine.

Nearly two dozen peer-reviewed studies have found that residents near mountaintop removal mining areas have higher rates of cancer, mortality and birth defects.

Though concern over these studies has been mounting for years in the coalfields of Appalachia, no federal agency charged with regulating mountaintop removal mining has bothered to examine the evidence to determine whether its regulations adequately protect public health.

"It's not our job."

The National Environmental Policy Act requires federal agencies to assess the impact of activities they permit on the environment and the people who live in that environment.

In its defense to a lawsuit brought by Earthjustice, Sierra Club, Kentuckians for the Commonwealth, Appalachian Mountain Advocates and Appalachian Citizens' Law Center, the Corps claimed it was responsible for determining only the public health effects of damaging streams, not of the mountaintop- removal mining operation that causes the damage.

The burden for determining that, said the Corps, falls on state regulators who issue the mining permits. But the state regulators in Appalachia have been saying "It's not our job" for years, too.

We brought this case on behalf of Kentuckians living near this proposed mine because we think our federal laws and regulations are clear. Even when state and federal jurisdictions intertwine, federal agencies are responsible for assessing the full impacts of their permits, including those on the communities surrounding them.

This includes approximately 2,000 residents, plus 325 elementary children at Lotts Creek Community School. Alice Whitaker, director of the school and its wellness program, supports the plaintiffs and participated in the case.

"The school is approximately two miles from Leeco Inc.'s Stacy Branch mine as the crow flies. Many of our students live even closer to the mine," Whitaker wrote in a court filing.

"I am familiar with the studies," she wrote. "I have observed many of these health problems in our students and their families. I am dedicated to protecting the health of our students."

Unfortunately, last week a federal appeals court sided with the Corps and ruled that this federal agency can ignore the evidence that Whitaker's students are at risk.

Meanwhile, a congressional bill — the Appalachian Community Health Emergency Act (HR 526), which would require the federal government to study these health issues before any more permits are issued — has not been taken up by the committees that would move it toward passage.

And many of Congress's elected leaders from Appalachia are actually standing in the way of this and other solutions.

If the numerous, scientifically vetted studies are correct, there is good reason to think that coalfield residents are getting cancer and other illnesses, bearing children with birth defects and dying prematurely because of mountaintop-removal mining.

An entire legislative and regulatory structure is in place to protect against this, but that structure is failing the people of Appalachia. Why?

"It's not our job."

The obvious question then becomes: Whose job is it? If the Corps continues to abdicate its responsibility and get away with it, who will step up to look after the interests of the citizens of Central Appalachia whose health is being put in jeopardy?

Sadly, no one seems very interested in answering that question.

Trip Van Noppen is an attorney and president of Earthjustice, a nonprofit environmental law organization.

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