BIRMINGHAM, Alabama – The Black Warrior Riverkeeper last week lost a federal court battle to bring a halt to permits that allow Alabama mining companies to fill small streams with coal waste.
Coal groups applauded the judge’s ruling, saying it protects coal jobs in Alabama. They called the Riverkeeper’s lawsuit frivolous and a part of what they say is a war by the Obama Administration on the coal industry.
“The baseless attacks of these local liberal groups are nothing more than an effort to do the bidding of west coast extremists who will stop at nothing to get their way in Alabama and kill our jobs and raise our energy prices,” Alabama Coal Association President George Barber stated in a Wednesday press release.
But the war isn’t over for the Birmingham-based Riverkeeper group, which says the issue is about protecting state water resources.
“We are disappointed in the ruling because it effectively gives Alabama’s rivers and streams less protection from destructive coal mining impacts than rivers in other mining states, including Kentucky and West Virginia.,” Catherine Wannamaker, attorney with the Southern Environmental Law Center, said Wednesday.
The Riverkeeper’s attorney, Eva L. Dillard, on Wednesday also filed the group’s notice of appeal to the 11th Circuit Court of Appeals.
The Alabama Coal Association was represented by attorneys from Balch & Bingham LLP.
U.S. District Court Judge William Acker last week issued a ruling in a 2012 lawsuit brought by the Riverkeeper and one other environmental group over the permits that allow the filling of streams with coal waste. The judge granted summary judgments in favor of the U.S. Army Corps of Engineers, which issues the permits, and the Alabama Coal Association and four of its member companies.
The four companies are MS&R Equipment Co., Inc., Reed Minerals, Inc., Twin Pines, LLC, and Walter Minerals, Inc.
The Riverkeeper in the lawsuit, among other things, challenged the grandfather provision in the 2012 Nationwide Permit 21. That permit, which is issued by the Corps under the federal Clean Water Act, allows the filling of streams and wetlands with coal mining material. The grandfather provision allows mining companies that had five-year permits under 2007 rules to continue the unlimited filling of streams for five more years without obtaining a new authorization under the more restrictive 2012 rules, according to the group’s lawsuit.
The Riverkeeper claims more than 27 miles of streams in the Black Warrior River watershed are being filled as a result of 41 permits issued in Alabama. Courts have barred coal mining companies in other states, including Kentucky and West Virginia, from operating with permits under the grandfather rule, the Riverkeeper has noted.
Acker had earlier rejected a motion by the Riverkeeper for an injunction to halt the permits while the lawsuit proceeded. The group, the Corps and coal industry then each sought summary judgments in their favor on the issues.
Acker granted the summary judgment motions by the Corps and coal industry but not the Riverkeeper in last week’s ruling.
Acker, in his 38-page opinion, rejected arguments by the Riverkeeper that contended that the Corps improperly relied on an analysis of the accumulative effects of allowing stream fills performed from 2007 when it issued the new NWP 21 in 2012. The judge also rejected the group’s claim that the Corps’ Clean Water Act cumulative effects analysis under the permit is arbitrary and capricious because the Corps did not properly consider compensatory mitigation “and because compensatory mitigation does not have a factual basis.”
An Environmental Protection Agency website defines compensatory mitigation as “the restoration, establishment, enhancement, or in certain circumstances preservation of wetlands, streams or other aquatic resources for the purpose of offsetting unavoidable adverse impacts.”
In his ruling, also Acker found that the Riverkeeper should have filed its suit when the new rules were put in place, not months afterward. “Intervenors (coal companies) took actions in reliance on the (permit) reauthorizations in the 9-10 months that plaintiffs delayed before bringing suit. The court knows that intervenors would be badly hurt by a vacatur (removal) of 2012 NWP 21(a), but cannot say whether vacatur would benefit plaintiffs,” the judge states.
The coal industry had told the judge that granting summary judgment in favor of the Riverkeeper would bring a halt to the surface coal mining industry in Alabama and put a $783 million dent in the state’s economy.
“Judge Acker’s prompt dismissal of this lawsuit is a major victory for the estimated 1,000 coal miners whose livelihoods were put in jeopardy by this legal challenge,” Patrick Cagle, executive director of JobKeeper Alliance, stated in an email to Al.com on Wednesday. “Black Warrior Riverkeeper and the Southern Environmental Law Center have routinely pursued litigation such as this as a back door approach to ending coal mining in Alabama.”