Ken Silverstein EnergyBiz Insider Editor-in-Chief

The issue is most profound in Appalachia, which is economically dependent on coal. But the method known as mountaintop removal is now targeted by critics, who argue that the rock and dirt removed from the mountain peaks is subsequently cast into streams thereby harming water quality and killing off certain wildlife.

Is mountaintop removal overblown? It depends on whom is asked. But the subject has split entire communities, with some members favoring their high-paying jobs with good benefits and others arguing that their way of life have been turned upside down. It's an explosive subject that doesn't just touch the people of rural West Virginia, Kentucky and Eastern Tennessee but also affects those living in the rest of the United States.

"This country cannot afford to waste any energy source," says Don Blankenship, CEO of Massey Energy Co., which is the region's largest producer of coal. He adds that water quality has not been undermined and that many of the areas touched by mountaintop removal in West Virginia are better off than before because economic development has occurred on the newly cultivated lands.

Mountaintop removal accounts for a third of all coal mined in Appalachia and a study by Marshall University says that 15,000 jobs and $2.4 billion in economic output in West Virginia alone depend on these mining operations. The Energy Information Administration estimates that coal reserves in Appalachia are 55.2 billion tons while coal production tied to mountaintop mining in West Virginia alone is 52 million tons annually, which is more than the production of underground mining operations.

Mountaintop mining gained prevalence in the 1990s, largely because about 90 percent of the resources that lay beneath those peaks were available for production. After the area is mined for coal, it must be "reclaimed" and turned into something useful. Coal companies and economic developers also said that the newly-created flat land -- a scarcity in many parts of Appalachia -- has turned once unusable areas into thriving properties where schools, shopping malls and recreational sites now exist.

It's a lot more troublesome than that, say environmentalists and other critics. When entire mountaintops are shoved aside into the valleys below, the complications add up. Roughly 6,700 permits were issued between 1985 and 2001 and all to unload debris from the mining process to the areas below. According to the Environmental Protection Agency, about 1,200 miles of streams have been buried while at least 380,000 acres of local forestry have been devastated.

Middle Ground

That's why suits are now pending against the U.S. Army Corps of Engineers that issues many of the permits associated with the mining technique. All of them claim that the process is in violation of the Clean Water Act. A U.S. District Court judge in Charleston, WV had issued the third in a series of rulings in July 2004 that had prohibited the engineering corps from issuing new permits through a streamlined process that circumvents outside inspection.

But, the Bush administration and the coal industry challenged that ruling. They argued that the engineering corps ought to be able to issue "general" permits -- not individual ones for each site -- that allow companies to search for coal deposits if they cause a minimal level of environmental harm. The U.S. District rulings in West Virginia overreached by limiting mountaintop removal, they said, because such decisions should be left to the appropriate environmental agencies.

The 4th U.S. Circuit Court of Appeals in Richmond agreed with the Bush administration and the coal industry. It has overturned all of the lower court rulings - three in four years -- that altered the permitting process. The last one came in November 2005. A three-member panel -- not the full court -- reasoned that general permits did not evade the Clean Water Act standards and that individual permits would encumber the mining practice.

Now, environmentalists are headed back to court again. The Appalachian Center for the Economy and the Environment and the Trial Lawyers for Public Justice have recently filed motions in West Virginia asking the courts once more to declare the streamlined permitting process a violation of the Clean Water Act. They want the district court to look at the effect mountaintop removal has on the "whole environment" and not just on specific water quality issues. Other groups, meantime, want the full 4th U.S. Circuit Court to hear the case, where they hope more judges would be sympathetic to their cause.

"The Appalachian regions, the oldest mountain chain in the world, are one of the nation's richest, most diverse, and most delicate ecosystems, an ecosystem that mountaintop coal mining authorized by the corps' general permit may irrevocably damage," wrote Judge Robert King of West Virginia in a dissenting view from the 3-member panel that heard the latest appeal on this issue.

The mining industry takes issue with the claims against it, saying that it is heavily regulated and is subject to numerous federal and state rules. Its advocates say that any limitation on production would have serious implications for the rest of the country.

If the supply of eastern coal production is curtailed because mountaintop mining is banned, supporters of strip mining say that it would mean that certain utilities would import coal with inferior heat content and at potentially higher costs. Or, it could put a greater burden on natural gas, which is much cleaner but far less plentiful. Under any condition, consumers would end up paying higher utility bills, they say.

Clearly, all federal and state laws with applications to the environment must be respected. And green groups and others are within their rights to challenge coal operators to be the best they can be. But, coal does supply more than half of the nation's generation mix and it is not going to disappear.

A middle ground is possible. While it won't satisfy many of the opponents of mountaintop removal, a concentration on improved reclamation techniques is the most practical solution to an issue that is deeply divisive. Beyond making the site available for economic development, the land and surrounding areas must be aesthetically pleasing. The results of those efforts will be felt not just in Appalachia but throughout the nation.

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