Rape of the Appalachians

Driving his battered sedan through Blair, West Virginia, a cigarette dangling between thin fingers, James Weekley passes among ghosts. "There stood three houses," he says, gesturing at a flat, grassy area below the narrow, two-lane road, "and across the creek were two more. They sold a year back, then they burned." Five years ago, this small town, strung along a creek bottom between two mountains, had stores, an elementary school, and twice the 80 families who now live here. Then the Dal-Tex coal company began strip-mining Blair Mountain. Since then, the community has been darkened by dust storms, battered by flying rock, and shaken by dynamite blasts. Every month more residents sell their homes to the company and move out. When the job is done, not much will be left of the town or the mountain.

Coal mining is an old story in Appalachia, but Blair has been claimed by a new kind of boom. Today's mining is driven by mountaintop removal, a method of strip-mining that does just what the name suggests. On a mountaintop mine, a company blasts and bulldozes hundreds of vertical feet from a cluster of connected peaks, turning them into a single field of pulverized rock. The bulldozers push millions of tons of earth and stone into the surrounding valleys, filling them hundreds of feet deep. These "valley fills" sometimes run for several miles. Mountains here are small and valleys narrow, and in the wake of a mountaintop mine they blend into a uniform, stony terrain utterly unlike the lush, rugged West Virginian slopes. The hardwood forests of the region do not return to the mine sites. The land mainly supports tough grasses and scrub trees.

Coal companies have strip-mined 500 square miles of West Virginia since 1981, and the pace has increased rapidly. In the past three years, the state's Division of Environmental Protection (DEP) has authorized 27,000 acres of new mountaintop mining, after permitting only 9,800 acres throughout the 1980s. The largest existing mine will cover perhaps 20,000 acres before it closes early in the next century, and mines on the same scale are becoming more common. Valley fills have buried 469 miles of streams in five southwestern watersheds and covered an estimated 700 miles of streams across the state.

Most of West Virginia's mountaintop mines are probably illegal. But the DEP has continued to authorize them, with the support of the federal Office of Surface Mining (OSM). Since Congress passed strip-mining legislation in 1977, state and federal regulation has presented a Rake's Progress of good law gone bad under hostile or indifferent administrations. Meanwhile, no one knows the ecological consequences of pushing tens of thousands of acres of mountains into hundreds of miles of streams. And the strip-miners are not waiting to find out.


The Stripping Boom


Although almost invisible to the public eye, the coal industry is booming as never before. Coal produces 56 percent of American electricity, and its cost per unit of energy is lower than that of any other fossil fuel. U.S. coal production went over a billion tons for the first time in 1990 and has stayed there in each year since 1994. The average coal miner has tripled his productivity in the past decade.

Those gains come at the cost of wholesale changes in the coal industry. Although dust-coated miners in headlamps still emerge every evening from mines in West Virginia, Kentucky, and Pennsylvania, their numbers have been dwindling for decades. Increasingly they are replaced by bulldozers, explosives, and the Goliaths of the coalfields, earth-moving machines that stand 20 stories high and can pick up 130 tons of dirt and rock with one bite of their shovels. The numbers are striking. Coal employment has declined from 163,000 to 85,000 nationwide in the past decade, and from 29,000 to under 20,000 in West Virginia—down from almost 60,000 20 years ago. In 1948, before the advent of strip-mining, West Virginia alone had more miners than work in the entire nation today.

The heart of the new coal industry is strip-mining—and the most efficient form of stripping is mountaintop removal. Strip-mining now accounts for 62 percent of U.S. coal production and one-third of West Virginia's. Nationally, the average strip-miner produces three times as much coal as his underground counterpart.

Dropping prices and mounting competition have pushed Appalachia's coal operators toward stripping. The price of coal has fallen steadily from over $30 per ton in 1981 to just over $20 today, thus intensifying the pressure to increase productivity. Western miners have increased their share of national production by more than 10 percent since 1987, benefiting from thick, easily accessible coal seams, and increasing the squeeze on the thin seams and steep mountains of the East. New federal regulations have also increased the value of West Virginia's hard to access coal deposits. The 1990 Clean Air Act mandates that power plants use coal low in sulfur, because high-sulfur coal is the chief cause of acid rain. Southern West Virginia is rich in low-sulfur coal, which is often distributed in thin horizontal veins, like icing in a layer cake, through hundreds of vertical feet of sandstone, earth, and shale. These thin deposits are difficult to mine by traditional methods, but they are ready-made for mountaintop removal.



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Law and Outlaws


Strip-mining in the United States is governed by a 1977 federal law, the Surface Mining Control and Reclamation Act (SMCRA), called "SMACK-ra" by those who work with it. The act was passed after six years of congressional battles and vetoes by President Ford in 1975 and 1976. Its real origins, though, lie in eastern Kentucky, where strip-mining exploded in the 1960s without meaningful regulation, and people whose property lay over coal owned by mining companies found their fields, woods, and family cemeteries destroyed without recompense. (Ownership divided between minerals and surface land has been common in Appalachia since a wave of speculators visited the region at the beginning of this century, buying mineral rights from often illiterate landholders for a tiny fraction of their value.)

In incidents that became folk legends, elderly mountaineers threw themselves to the ground in front of approaching bulldozers, sometimes shaming the strippers into withdrawing. Others broke into the dynamite sheds at stripping sites and used the stolen explosives to sabotage bulldozers and backhoes. At the same time, Kentucky lawyer Harry M. Caudill won national attention with powerful histories of the coal industry's presence in his state, including the bleak, elegiac masterpiece Night Comes to the Cumberlands.

By 1972, coalitions of local residents, VISTA staffers fresh from college, and members of the region's nascent environmental movement were agitating across Appalachia for an end to stripping. Then a dam built of mining detritus burst, sending a wall of black water down Buffalo Creek, in Logan County, West Virginia. One hundred and twenty-four people died in the flood. Now no serious person could any longer pretend that a scarred landscape was the only price of stripping.

Strip-mining legislation had already been introduced in Congress by Ken Hechler, a flamboyant, idealistic representative from southern West Virginia. From the beginning, Hechler wanted to ban stripping outright and grant enforcement responsibility to the Environmental Protection Agency (EPA). After the Buffalo Creek disaster, the Nixon administration introduced a weaker bill that would have given states chief responsibility for regulation, overseen by the Bureau of Mines—then widely considered a political arm of the mining industry. Representative Morris Udall of Arizona engineered a compromise that included strong federal standards, allowed strip-mining under restricted conditions, and placed the law in the hands of the new Office of Surface Mining in the Department of Interior. The legislation passed.

Hechler opposed the compromise, warning his colleagues, "You know the economic and political history of this nation. You know the realities of economic and political pressure. You know that neither a State legislature nor any administrative authority can stand up against the wealth and power of a dominant economic group."

Indeed, "King Coal" had long ruled West Virginia politics, with coal companies on the right and the equally imperial United Mine Workers of America (UMWA) on the left. The coal industry owns half of the land in the Appalachian coalfields and as much as 75 percent in West Virginia's top coal-producing counties. In the early 1970s, a study found that every governor and president of the state senate in the previous 20 years had worked in the coal industry before taking office, afterward, or both. Current Governor Cecil Underwood, who had long worked in the coal industry, received more than 20 percent of his campaign contributions and 30 percent of the cost of his million-dollar inauguration from coal.


An Outlaw Industry


Hechler predicted that as long as the coal industry dominated Appalachia, an inch of regulatory leeway would rapidly become miles of stripped land. From the beginning, West Virginia's regulations were peppered with omissions and innovative interpretations. Newly hired field inspectors were introduced to this "local version" of the law and in some cases did their work unaware that they were in violation of actual law. Patrick McGinley, a West Virginia University law professor and environmental litigator, recalls challenging illegally issued permits during the 1980s: "Virtually everything the law required was not being done. I had the agent who had issued the permits read the relevant section of SMCRA aloud to me. He said, 'I've never seen that before.' "

Under a corrupt governor who would later land in federal prison, coal companies went on a binge in the 1980s, ignoring basic environmental standards and then ducking reclamation requirements by declaring bankruptcy and reconstituting themselves under different names. Investigative reporters, who did much of the enforcement agencies' job in this period, found multiple "companies" working in single underground mines and parent corporations spawning scores of short-lived offspring.

West Virginia's environmental regulators have shaped up considerably since then, but the DEP has kept the habit of collaborating with the coal industry, producing a tangled map of discrepancies between state practices and the language and intent of federal law. Most dramatically, SMCRA requires that after stripping, a company must restore the disturbed land to its "approximate original contour"—that is, put it back more or less the way it was. According to the original federal act, companies can be exempted from this requirement only when the leveled land is put to a new, productive, and valuable "commercial or recreational" use. The thrust of the law is that mountaintop removal might be an acceptable shortcut along the road to certain forms of economic development, but that otherwise mountains should be left as they are.

Yet most mountaintop jobs leave landscapes undeveloped and isolated. State agencies in Virginia and Kentucky permit mountaintop removal for "wildlife and forest management," a category broad enough to catch any swath of land where trees might someday grow or deer browse. West Virginia counts a company's promise to open exhausted mining sites to hunters and fishermen as sufficient to make the land a "recreational facility." But neither approach is more than a dodge since hardwood forests refuse to grow on strip-mined land: eliminating forests and streams does not improve wildlife habitat.

Even so, enforcement has been as lax as the state regulations are dubious. Ken Ward, Jr., a reporter with the Charleston Gazette, examined 81 permits for mountaintop removal operations and found that 61 did not include exemptions from the approximate original contour requirement. That is, 75 percent of the operations were illegal on their face. The DEP countered by arguing that since "contour" means shape, a change in altitude is irrelevant. That is to say, a company that drops a mountain 550 feet but leaves the bottom somewhat rugged has restored the site's approximate original contour. Removing a mountaintop, then, does not constitute mountaintop removal.

A suit now being prepared for the Highlands Conservancy, a West Virginia environmental group, re-quests that the state's regulation of mountaintop removal be brought back into sync with federal law. Beyond the approximate original contour question, the suit reminds the court that SMCRA requires a comprehensive study of how strip-mining affects water systems, which has not been conducted. The suit also asserts that the federal Clean Water Act bars the burial of streams with waste from mine sites. If upheld, this objection will mean that valley fills are simply illegal. Moreover, while SMCRA requires that a company post sufficient insurance or collateral to clean up the site should it go bankrupt or simply abscond, low-ball estimates and lax enforcement have left bond amounts well below the sums required to clean up abandoned sites. The OSM estimates the deficit at $60 million. Patrick McGinley puts it at ten times that amount.


Looking for the Feds


All of this takes place under the oversight of the Office of Surface Mining, the agency charged with ensuring that federal law is strictly enforced through a combination of field inspections and annual reviews of state programs. It's a demanding charge. SMCRA was an unusual piece of legislation. It contained elaborate requirements rather than broad guidelines for state programs, and mandatory citations and punishments for any violation. These stipulations were an acknowledgment that corrupt collaboration between government and industry was the rule in the coalfields, and that only strong national standards could end that pattern.

The program began auspiciously. President Jimmy Carter's OSM hired administrators and field inspectors who were known for their commitment to enforcement. Inspectors shut down illegal mines and brought irresponsible operators to heel, over sometimes violent resistance. A few inspectors were taken hostage by entire crews of angry miners.

Then, after Ronald Reagan's election in 1980, things began to fall apart. Interior Secretary James Watt appointed OSM administrators who had fought SMCRA in the courts. They promptly approved state programs that, according to an OSM official who was with the agency then, "did not in any way, shape, or form meet the federal standards." For much of the 1980s, the agency was strained by low-level warfare between would-be enforcers and Reagan appointees, with the latter slowly gaining ground. The program reached its nadir under George Bush's first OSM director, Harry Snider, who cut deals with companies to weaken enforcement, then imposed his arrangements in haranguing, late-night telephone calls to his underlings' homes.

Bill Clinton's 1992 victory raised hopes among the remnants of the original OSM staff, who by then had become a corps of toughened dissidents. They have mostly been disappointed. President Clinton's first OSM director, Robert Uram, developed a reputation for indecisive leadership. Uram was widely perceived as caving in when the 1995 Republican Congress passed a 25 percent cut in the agency's program budget. The subsequent firings fell heavily on the corps of field inspectors, many of whom were precisely the same ones who had spent years resisting Reagan-Bush administrators.

Since then, OSM inspections of mining sites have fallen by as much as 50 percent in some states. People within the OSM describe the agency as isolated and nervous. Lacking active support from the Clinton administration, resented for its mere existence by industry, and scorned by disappointed environmentalists, the OSM is at constant risk of further cuts or complete elimination. From director Kathy Karpan to field inspectors, OSM agents tread carefully. Inspectors describe working to bury citizen complaints in communities where house foundations are cracked and water wells ruined by blasting. They know that the complaints are valid, but know also that they cannot uphold them without jeopardizing themselves or drawing fresh political attacks on the agency.

In recent months, citizen pressure and expressions of concern from two of West Virginia's congressional representatives have sparked the beginnings of federal action. The OSM has announced that West Virginia needs a clear definition of mountaintop removal. The Army Corps of Engineers has suggested that no new permits should be issued while the legal disputes surrounding the practice are settled. The EPA, which oversees the water-quality portions of strip-mining regulation, has warned against further relaxation of state law. However, permitting continues, and there has been no serious discussion of stopping ongoing mining.

Though the OSM now has almost no defenders, the agency remains the best hope for sound coal policy. Unless Democrats control both houses of Congress by a substantial margin, revisiting SMCRA could be disastrous. Although the OSM has permitted coal regulation to become a mockery of federal law, the agency remains better positioned than any other body to reinvigorate enforcement. Observers and OSM members agree that a few tactical appointments and a mandate from the secretary of the interior and the White House would be enough to revive the remaining inspectors and point the agency in the right direction. A push to restore the OSM's funding and rehire inspectors could also spur renewal. So far, the OSM remains a political orphan, and the land and people of the coalfields pay a stiff price for its abandonment.


Coal's True Cost


The deterioration of mining regulation covers over a deeper set of questions. What are the long-term effects of removing mountaintops and filling valleys? Should mountaintop removal and other forms of strip-mining be legal? And should we rely as heavily as we do on coal?

No one knows what the legacy of mountaintop removal will be a century from now. Even the basic question of whether the valley fills will remain stable—a question inevitably posed in the shadow of the Buffalo Creek disaster—is uncertain: the West Virginia Division of Environmental Protection's Ed Griffith declares briskly, "I have complete confidence in the stability of those fills." In contrast, a former OSM employee who received a national award for his engineering work before leaving the agency says, "I'm very concerned. As time goes by, and these fills become saturated with water, they're going to begin to fail. I am convinced of that." There have been landslides reported at the feet of valley fills in Kentucky, but there is no consensus on whether those fills were representative or just exceptionally ill-engineered.

Another unanswered question is how stripping will affect Appalachia's waterways. River life depends on decaying leaves and other organic matter that small streams carry. But these delicate processes are diminished with every mile of valley fill. Moreover, no one knows how churning together complex layers of porous and nonporous rock will affect drainage patterns and water tables. Appalachia's water already carries a grim legacy of coal mining. Both strip-mining and traditional deep-mining disturb sulfur, which reacts with oxygen to produce acid water that can kill a creek. Roger Calhoun, director of the West Virginia OSM office, estimates that 2,000 miles of the state's rivers and streams are "severely impacted" by acid runoff and other mine pollutants, and that many of those waterways are dead. He also acknowledges that as hundreds of mines in the state's high-sulfur coalfields close and the operators cease treating nearby water, thousands more miles will be endangered.

All this means that while coal is the world's cheapest source of energy it is also the most laden with hidden costs—the dead lakes of Russia and corroded statues of Eastern Europe, for example, began with draglines and dynamite. Coal is the number one culprit in producing acid rain, causing 70 percent of the United States's sulfur dioxide emissions and much greater amounts in places that still depend heavily on high-sulfur coal. Burning coal produces twice as much carbon dioxide as natural gas and 50 percent more than oil and gasoline, making coal a leading cause of global warming. With the arguable exception of nuclear power, no other energy source displays such a dramatic gap between its immediate price tag and its true long-term costs.

These costs will not go down as long as mountaintop removal fits so readily into the logic of the country's energy economy. Berating the coal industry for destroying mountains and communities evades the reality that mining companies simply answer the country's ever-expanding appetite for cheap energy. West Virginia lawyer Tom Rodd, who won a landmark case in the early 1990s curbing some of the coal industry's worst excesses, judges that "West Virginia is the latest of the country's energy sacrifice zones, surrendered to keep power cheap. It isn't the first, and it may not be the last."

The best response to the disparity between coal's immediate and actual costs would be to change the terms of the fuel economy by erasing coal's artificial cheapness. Sound regulation and tax policy could build the environmental and social cost of mining and burning coal into its market price. Making coal more costly, in turn, would shift incentives throughout the economy, giving companies reason to invest in fuel-efficient technology and even nonpolluting energy sources. Simply enforcing SMCRA and the Clean Water Act also would have this effect, since responsible mining and restoration is more expensive than mountaintop removal. A bolder approach would revive the idea of a "carbon tax" on fossil fuel emissions, taxing energy use in proportion to the amount of greenhouse gas that it produces. By using carbon-tax revenue to finance, say, a cut in the regressive and economically dampening payroll tax, lawmakers could re-orient the economy toward both high employment and clean technology.

The near demise of SMCRA also holds lessons for the conduct of public policy. One concerns the hazards of administrative law. Agencies like the OSM and DEP blend the functions of the executive, legislative, and judicial branches. They write regulations, sometimes departing significantly from the original intent of legislation, and establish interpretations of those regulations in their own administrative law courts. Administrative agencies have no direct, democratic accountability. Although citizen suits and political pressure sometimes affect agencies, regulatory law operates mainly beyond citizens' view. It is, however, subject to constant legal challenge and lobbying by industry's lawyers. Sometimes, as with SMCRA, it becomes nearly unrecognizable. Making administrative agencies more democratically accountable will hardly be a straightforward task, but it is an urgent one.

The fate of SMCRA also highlights the poverty of the current enthusiasm for state control of programs of every sort. The new federalism aims to let states work as laboratories for innovative policies and to permit state governments to respond to local conditions—social, economic, and ecological—that uniform national programs slough over. The history of mining regulation in West Virginia reminds us that those local conditions may include great disparities in political power, and sometimes even endemic corruption. Those problems occasioned the drive for federal standards in the first place, and they have not disappeared as federal policy has become less popular. Often, the challenge of effective government is not to unload federal programs but to make them work.


Although the coal industry is no longer the sole engine of Appalachia's economy, it has retained its political impunity. Musing on the days when he worked as a strip-miner, Blair resident Carlos Gore observes wryly, "I reckon what goes around comes around." Asked if, by that principle, the coal bosses will get their comeuppance, he shakes his grizzled head: "The Lord don't seem to look on them that way." So far, the coal companies have been largely exempt from recompense and retribution even as their product has helped exempt the rest of the nation from environmental responsibility.

Any good resolution of the mountaintop-removal struggle will have to break this vicious circle. And in so doing, it will necessarily address questions that run beyond strip-mining. Political commitment will have to overcome almost two decades of administrative neglect to revive the Office of Surface Mining. Political and ecological responsibility will have to take precedence over economic recklessness. Citizens will have to insist that market prices and profit margins should not alone determine the shape of the country's landscapes and communities. We will have to decide whether to maintain our comfort at the price of more sacrifice zones, with their dead towns and leveled mountains. In Appalachia, the time for a decision is running out.




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