Posted by: Lawyer Sanders | November 19, 2008

Lawyer Sanders says Public Justice wins major battle in its war against mountain top removal and requisite USACE’s valley fill permits in West Virginia federal district court.

The U.S. Federal Court for the Southern District of West Virginia granted a critical preliminary injunction filed by Public Justice against a valley fill permit issued by the U.S. Army Corps of Engineers for a new mountaintop removal mine in West Virginia. The Fola Ike Fork 1 and 2 decision is significant because the court’s decision questions the scientific validity of the cornerstone of the Corps’ permitting strategy – the theory that coal companies can make up for burying headwater streams with mining waste by creating new streams somewhere else.


Under the Corps’ rather novel ecological theory, if the value of the created streams exceeds the value of the buried streams, the environment has a net gain and the mine’s environmental impacts are insignificant. To measure stream values, the Corps uses a visual assessment of stream structural indicators to infer their biological functions. As Public Justice’s expert described the methodology, it is like relying solely on a person’s height and weight to infer their blood pressure and overall health.


At the preliminary injunction hearing, the Corps employee who authored its stream assessment method testified that he was directed to prepare it in a few weeks’ time, had no training in headwater stream ecology, consulted with no stream ecologists, read no scientific papers that supported an inference that the structural indicators he choose were linked to functional stream characteristics, and never measured any stream functions during his single site visit to Appalachia in 2007.


After hearing this testimony, the federal district court found it likely that Public Justice would prevail on its claim that the Corps’ decision is illegal. Because all of the Corps’ recent permit decisions in West Virginia rely on this method, all of those permits share the same flaw.  To read the decision, click here <> .


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