West Virginia's political establishment has been unwavering in its support for the coal industry. The close relationship is on display every year at the annual West Virginia Coal Symposium, where politicians and industry insiders mingle. This past year, Gov. Joe Manchin and Senator Jay Rockefeller addressed the gathering, advocating ways to turn climate-change legislation to the industry's advantage and reduce its regulatory burdens. "Government should be your ally, not your adversary," Manchin told coal-industry representatives.
Without such backing, mountaintop removal would not be possible, because federal environmental laws would prohibit it, says Jack Spadaro, a former federal mining regulator and a critic of the industry. "There is not a legal mountaintop mining operation in Appalachia," he says. "There literally is not one in full compliance with the law."
Since 1990, U.S. policy under the Clean Water Act has been "no net loss of wetlands." To "fill" a wetland, one needs a permit from the U.S. Army Corps of Engineers, which is supposed to evaluate the environmental effects and require mitigation by creating new wetlands elsewhere. If the potential impact is serious enough, the National Environmental Policy Act kicks in and a detailed study must be done. But the coal-mining industry has often obtained the necessary dumping permits without due consideration of possible environmental impacts.
The Corps has admitted as much in response to lawsuits. In one case, the Corps said it probably shouldn't even be overseeing such permits because the dumped waste contained polluting chemicals regulated by the EPA. In another case, brought by West Virginia environmental groups against four Massey Energy mining projects, the Corps conceded that it routinely grants dumping permits with virtually no independent study of the possible ecological fallout, relying instead on the assessments that coal companies submit. In a 2007 decision in that case, Judge Chambers found that "the Corps has failed to take a hard look at the destruction of headwater streams and failed to evaluate their destruction as an adverse impact on aquatic resources in conformity with its own regulations and policies." But because three of the mining projects challenged in that case were already underway, Chambers allowed them to continue, pending the case's resolution. Massey has appealed the case to the Virginia-based United States Court of Appeals for the Fourth Circuit, which has overturned several lower court rulings that went against mining interests.
In 2002, the Bush administration rewrote the rule defining mountaintop mining waste in an attempt to work around the legal ban on valley fills. This past October, the Interior Department, pending EPA approval, did away with regulations that ban dumping mine waste within 100 feet of a stream—a rule that's already routinely ignored (though the EPA recently fined Massey Energy $20 million for violations of the Clean Water Act).
Industry critics say they're also hampered by West Virginia regulations that protect private interests. The vast majority of West Virginia acreage is owned by private landholding companies that lease it and the mineral rights to coal companies. And while industrial land-use planning is a matter of public record in most states, not so in West Virginia. As a result, critics say, mountaintop projects unfold slowly bit by bit, making it hard for outsiders to grasp a project's scale until it's well underway.
In Ansted, residents say they can't even be sure what's coming next because the coal company doesn't explain its plans. "They will seek permits on small plots, 100- to 300-acre parcels," said Mayor Hobbs. "My sense is, we should have a right to look at that long-range plan for 20,000 acres. But if we got to see the full scope of those plans, then mountaintop removal would stop," because the enormousness of the affected areas would stoke opposition.
The standoff is frustrating to Hobbs, who has been unable to reconcile the coal industry's actions with his town's ambitions. "I'm a capitalist," he said. "I worked for a major corporation. I'm not against development. It's troubling—I see tourism and economic quality of life as the only thing that will last beyond a 15- to 20-year economic cycle. And with mountaintop removal, that is at risk. And even if we dodge that bullet, the next community may not."
John McQuaid lives in Silver Spring, Maryland, and is the co-author of Path of Destruction: The Devastation of New Orleans and the Coming Age of Superstorms.