In response to a lawsuit from the Center for Biological Diversity, the West Virginia Highlands Conservancy, the Sierra Club, and the Ohio Valley Environmental Coalition, the Office of Surface Mining Reclamation and Enforcement has agreed to consult with the U.S. Fish and Wildlife Service by October 16 to review the impacts of coal mining across the country on endangered species and ensure their survival is not being jeopardized. Background
Congress enacted the Endangered Species Act in 1973 to provide for the conservation of endangered and threatened fish, wildlife, plants and their natural habitats Under the Act, agencies are required to insure that any action “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined … to be critical.”
The “actions” which the agencies have to make sure do not harm threatened or endangered species include permitting of, in this case, coal mines. When the agencies make decisions on, in this case, coal mining permits, it must meet its obligations under the Endangered Species Act.
The law assumes that most agencies, including the Office of Surface Mining, don’t know enough about protecting endangered species to do it adequately. When there are endangered or threatened species which could be affected by its decisions, it is required to ask the Fish and Wildlife Service what to do. The jargon for this is that it must do a “consultation” which will lead to the Fish and Wildlife Service issuing a “Biological Opinion.”
What happened here
In 1995, the Office of Surface Mining initiated a formal “consultation” with the Fish and Wildlife Service about the impact of surface mining on endangered species. The result was that, in 1996, the Fish and Wildlife Service issued a Biological Opinion, setting out what the Office of Surface Mining should do to protect endangered species which might be threatened by mining.
In the Biological Opinion the Fish and Wildlife Service responded to the question of what the Office of Surface Mining should do to protect endangered species with a document that could be summarized as “not much.” It said that the Office of Surface Mining just had to make sure that its permitting required that companies follow the Surface Mining Coal and Reclamation Act requirements and that would be sufficient to protect endangered species.
As time passed, it became clear that the 1996 Biological Opinion was not enough. The Fish and Wildlife Service, the Plaintiffs, and everybody else now agrees that it is inadequate. Numerous scientific studies have linked coal mining to declines in birds, fish, salamanders, crayfish, insects and freshwater mussels.
In 2017, the Office of Surface Mining asked the Fish and Wildlife Service for another opinion. It sought to find out what it should be doing to protect endangered species.
Then everything stopped. Permitting of mining operations went on, of course, but the Fish and Wildlife Service did not do another Biological Opinion. Instead, the Office of Surface Mining and the West Virginia Department of Environmental Protection continued to rely upon and follow the 1996 Biological Opinion, the one everybody agrees is inadequate to protect endangered species.
Now that will have to change. As a result of the litigation, the Office of Surface Mining will have to seek guidance (formally referred to as a “consultation”) from the Fish and Wildlife Service and use the results of that consultation to guide it in its supervision of mining throughout the country.