Pennsylvania Conservationists Score Major Court Victory on Destruction from Mining

The United States Court of Appeals for the Third Circuit recently gave a victory to Pennsylvania's environment and economy by ruling in favor of a coalition represented by Citizens for Pennsylvania's Future (PennFuture) that the Commonwealth of Pennsylvania must require the state's coal operators to post bonds to cover the entire cost of environmental cleanup. The case began in December 2003, when PennFuture filed a lawsuit on behalf of Pennsylvania Federation of Sportsmen's Clubs, Pennsylvania Council of Trout Unlimited (formerly PA Trout), the Pennsylvania Chapter of the Sierra Club, the Tri-State Citizens Mining Network (now known as the Center for Coalfield Justice) and the Mountain Watershed Association against both the federal and state governments for their failure to protect Pennsylvania's environment from damage caused by mining operations, including acid stream pollution.

PennFuture senior attorney Kurt Weist, who argued the case before the Third Circuit, said that "the court hit the fundamental point on the head. The federal Surface Mining Control and Reclamation Act (SMCRA) requires mine operators to guarantee that all coal mines operated after August 3, 1977 will be fully reclaimed, with all toxic discharges treated to prevent stream pollution."

Weist added that "Pennsylvania has a legacy of over $15 billion in damage to clean up from mines abandoned before August 1977. Anglers and hunters, conservationists, tourism industry representatives and clean water advocates have been the leaders in the effort to prevent new mines and discharges from being added to that massive backlog. Now, the court has ruled with the citizens, and called for strong policies to protect our land, water and economy."

"This decision vindicates the environmental community's assertion that coal companies cannot be trusted to fulfill their legal obligations, based on promises alone," said Jeff Schmidt, Director of the Sierra Club Pennsylvania Chapter. "This decision is especially poignant for the Sierra Club, since it comes on the 30th anniversary of the passage of SMCRA. Our longtime Sierra Club leader on mining issues, Wyona Coleman, was heavily involved in the original passage of SMCRA and also in getting this litigation initiated and continued. We only wish that Wyona had lived long enough to see the successful outcome of her litigation. We dedicate this win to Wyona Coleman, longtime citizen advocate for the people and environment of the coalfields," Schmidt concluded.

"Pennsylvania's sportsmen are leading the charge to stop the destruction of our environment," said Melody Zullinger, Executive Director of the Pennsylvania Federation of Sportsmen's Clubs, "so we are very pleased with this decision. While we cannot change the past, we want to make sure that history does not repeat itself, with closed coal mines leaving a legacy of destroyed habitat and endangered wildlife."

Terry Morrow, former chair and member of the Pennsylvania Council of Trout Unlimited environmental committee agreed. "We are pleased that this long effort has finally come to a positive conclusion. The ruling of the Court of Appeals provides encouragement to Pennsylvania Trout Unlimited that the commitments of time, effort and resources to restoring viable trout fisheries to streams in the coal regions of Pennsylvania are not in vain and have better chances of success and long-term sustainability. The membership of Pennsylvania Trout Unlimited, as well as others both now and in the future, will have enhanced opportunities to experience the recreation and spiritual refreshment that accompanies fishing unimpaired waters."

Jim Kleissler, Executive Director of Center for Coalfield Justice also praised the ruling. "At last, we are seeing some justice for the people who live in the coalfields. They have been forced to live with polluted and undrinkable water and dangerous mine pits, all abandoned by coal operators. Finally, we have some hope that the coal industry will have to pay for the damages they cause."

Mountain Watershed Association Executive Director Beverly Braverman lamented that the case was even necessary. "It is disheartening that our government officials had to be taken to court and forced to do the right thing. With an existing $15 billion backlog of old mine damage, it is crystal clear we need to take action to stop the problem from getting any worse. But the state has adopted policies that slashed the amount of revenue generated by its reclamation fee, and has even proposed to eliminate that fee entirely. The court's ruling makes clear that those decisions took the state in the wrong direction."

Under federal and state law, the Pennsylvania DEP has primary responsibility for regulating the state's coal mining industry, with specific requirements that they guarantee that coal mines post bonds large enough to repair any environmental damage the mine may cause. This bonding requirement is crucial when coal operations cease to exist or if damage happens after the mine closes, as is frequently the case. The federal Office of Surface Mining (OSM) is responsible for monitoring the State's regulatory program.
The PennFuture lawsuit came after both the state and federal governments had failed to meet these requirements. Today's decision specifically overturns two 2003 rulings by OSM that DEP was fully complying with the law requiring the state to ensure that financial guarantees provided by mine operators were sufficient to clean up the pollution. DEP had adopted an "alternative bond system," which relies on a statewide pool of funds to supplement bonds posted for each mine, which are consciously set below the entire cost of cleanup.

Late last year, a new federal law was enacted on abandoned mine lands reclamation that will bring Pennsylvania more than $1.36 billion, guaranteed, over the next 15 years. This money, geared to cover damage from prior to 1977, will likely cover only a portion of the past damage.

PennFuture is a statewide public interest membership organization that advances policies to protect and improve the state's environment and economy. PennFuture's activities include litigating cases before regulatory bodies and in local, state and federal courts, advocating and advancing legislative action on a state and federal level, public education and assisting citizens in public advocacy.

A copy of the Third Circuit decision is available for download on the PennFuture website,

This article originally appeared in the 08/01/2007 issue of Environmental Protection.

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