From the Western Slope of the Mountains

By Frank Young

 Litigation

The West Virginia Highlands Conservancy and individual plaintiffs have been often criticized recently over our having taken our concerns about the official disregard of mining laws to federal court for adjudication. Virtually all the parties, the state and federal agencies being sued, even the governor's office in moments of candor, admit that surface mine permitting and mining were and are not being conducted within even the most general concepts of law governing these activities.

Not being able to defend past practices on the merits, the defenders of unlimited mountaintop removal (MTR) mining have resorted to classic "blame the messenger" tactics by simply criticizing the technique of using the courts to attempt settlement of the legal abuses. We are said to have been a part of alleged overuse of the courts. One southern West Virginia commentator wrote to me, "Even the judge needs a day off now and then!" (exclamation his, not mine).

This same commentator, a professional person not in the mining industry, said, "Even I am pleased that the patriots did not settle their concerns in King George’s Court".

Now some of us have the view that the purpose of the legal system, including the law and the courts, is so that society can have some degree of "organization" and can settle its differences in "civilized" forums. I've supposed that the social theory is that this legal system is better for mankind than settling differences with sticks, stones and guns.

What would our critics have us do? Resort to sticks, stones and guns? Then we'd properly be called outlaws and revolutionaries. So what recourse remains for folks who see the law being corrupted with impunity? Just shrug and accept the fact that state and federal agencies charged with implementing laws designed specifically to regulate mining activities are a part of the legal corruption? That attitude mirrors coal industry philosophy: "We don't care what the law is as long as we can still do as we please."

It has been said that we should have given long and careful thought before filing our federal court lawsuit over mining regulation. Guess what? We did! For over two decades we pleaded and waited for the 1977 Surface Mining Control and Regulation Act to be implemented in West Virginia. We watched as surface mining companies' money was slopped into politicians coffers while those same politicians looked the other way as surface mining companies practiced virtual self regulation. We lobbied politicians and agencies for serious enforcement under the laws. We watched and wept as officials claimed vigorous enforcement while turning the management of regulatory agencies into a virtual revolving door of coal industry lackeys and toadies.

So should we apologize for the lawsuit? No, I don't think so. Should the agencies, the coal industry and elected officials apologize for the lawsuit? Yes, I think so. They now admit that lots of the law was being ignored, not just a detail here and there.

The industry and the state, including Governor Underwood, have done a rather effective job of misrepresenting the lawsuit and regulatory abuse as a situation of environmentalists against labor. The governor even claimed that he got labor and industry together to craft a compromise in the MTR lawsuit!! What B.S. that is!!

So while MTR defenders are waxing eloquent about the West Virginia Highlands Conservancy and other plaintiffs being far too litigious, where is their wrath for the agencies, for Arch Coal and for Governor Underwood and too many previous governors, all of whom conspired to defend the indefensible and to further corrupt the permitting process.

Had Arch Coal and the other companies applied for the proper permits years ago, had the agencies not entertained and engaged in the sham of issuing bogus permits, and had this and other governors not been key figures in letting this abuse happen, the proper permits would have been issued, the lawsuit would not have happened and the coal industry, the miners and the politicians would not be blaming the messengers instead of the perpetrators.

An executive level figure at the West Virginia Department of Environmental Protection recently told me, although he likes Cecil Underwood, that he believes that Governor Underwood has an absolute blind spot when it comes to regulating the coal industry. Part of the purpose of the MTR lawsuit is to open the eyes of the regulators, of industry, of the general public and even the "blind spot" in Governor Underwood's eyes.