Washington Post: At least for the moment, the Army Corps of Engineers won't be issuing any new permits allowing coal companies to bury Appalachian streams under tons of rubble from mountaintop mining operations. The Bush administration recently issued rules explicitly allowing such permits, but U.S. District Judge Charles H. Haden II quickly said no. In a sharply worded opinion, he ruled that the Environmental Protection Agency and the Army Corps of Engineers had overstepped their authority by crafting rules that allowed waterways to be used as dumps for mining waste. The agencies essentially tried to rewrite the Clean Water Act through their regulation, the judge held, and that power belongs only to Congress. The agencies and mining companies can be expected to appeal, but his ruling was a clear, firm and welcome reminder of the law's fundamental requirement to protect the nation's waters.
The new rules were first proposed under President Clinton after Judge Haden wrote, in an earlier case, that the Corps was improperly approving permits for mining operations to fill valleys with the dirt and rocks left over when they blew the tops off mountains to get at coal deposits. The Clinton officials backed off after environmental groups protested, but their successors picked up the proposal. When the Bush administration issued the rules May 3, officials said they amounted to simple technical changes that brought regulations into line with existing practice. The judge wasn't buying that. Past permit approvals, he wrote, were "contrary to the spirit and the letter of the Clean Water Act." When earlier court decisions spotlighted the illegal practices, he said, "The agencies undertook to change not their behavior, but the rules that did not support their permit process." This effort, he declared, "must fail."
The practice of mountaintop mining has grown exponentially in recent years as new technology has made it possible for companies to use this approach to extract cleaner-burning low-sulfur coal at prices competitive with producers in the West and overseas. Coal companies argue that they have no safe alternative for disposing of rock and dirt among the steep Appalachian hillsides, and they say thousands of jobs will be lost if future permits are blocked. Judge Haden noted that the federal agencies are under immense political and economic pressure to make sure mountaintop mining can continue. But he also found that only Congress has the authority to decide whether that pressure warrants a change in the law that protects the nation's waters. He was right to slam the door on this rule.