Defenders of Appalachia: The Campaign to Eliminate Mountaintop Removal Coal Mining and the Role of Public Justice

By Baller, Mark; Pantilat, Leor Joseph | Environmental Law, Summer 2007 | Go to article overview

Defenders of Appalachia: The Campaign to Eliminate Mountaintop Removal Coal Mining and the Role of Public Justice


Baller, Mark, Pantilat, Leor Joseph, Environmental Law


   I. INTRODUCTION
  II. MOUNTAINTOP REMOVAL
 III. PUBLIC JUSTICE
      A. Background
      B. Public Justice Today
      C. Justice and the Environment
  IV. BIOGRAPHIES
      A. Jim Hecker
      B. Joe Lovett.
   V. LITIGATION HISTORY
      A. Bragg v. Robertson
      B. Kentuckians for the Commonwealth v. Rivenburgh
      C. Ohio Valley Environment Coalition v. Bulen
      D. Kentucky Riverkeeper v. Rowlette
  VI. LEGAL STRATEGY
      A. Agency Resistance
      B. Venue
      C. Judicial Resistance
      D. Citizen Suits
      E. Standing Issues
      F. Fourth Circuit Court of Appeals
      G. Funding
      H. Future Litigation
 VII. POLITICS
      A. Congress
      B. Executive Branch
      C. Agencies
VIII. POLICY
      A. Earthjustice: Joan Mulhern
      B. Work with Other Organizations
  IX. PUBLICITY
      A. Media
      B. Public Justice Outreach & Education
   X. CONCLUSION

I. INTRODUCTION

Flying over parts of the central Appalachian Mountains, the view below looks like a scene from the moon. Instead of noble stands of forest and tranquil streams, one finds a maze of roads and heaved earth with virtually all life obliterated. "You're seeing devastation ... on a scale unprecedented in this country. The sheer destruction is mind boggling." (1) This shocking image is the product of a coal mining practice known as mountaintop removal. "If you are looking for the greatest amount of environmental destruction caused by a single type of activity in the country today ... mountaintop removal coal mining in Appalachia would almost certainly get the prize." (2)

This Comment examines the legal strategies and techniques utilized in a series of environmental lawsuits challenging mountaintop removal coal mining. This case study also explores the role Public Justice (formerly Trial Lawyers for Public Justice) plays in affecting positive change through public interest law. Many are unaware of both the devastation in the Appalachians and the contributions of trial lawyers to public interest law. The aim of this Comment is to shed light on both these issues.

Part II of this Comment provides an introduction to mountaintop removal coal mining, and Part III summarizes the history, structure, and development of the organization Public Justice. Part IV describes the careers of two of the primary litigators involved in environmental lawsuits challenging mountaintop removal coal mining: Jim Hecker, director of the Environmental Enforcement Project at Public Justice, and Joe Lovett, founder and director of the Appalachia Center for the Economy and Environment. Part V details the history of litigation involved with this effort to stop mountaintop mining and Part VI offers an insight into the legal strategies these two attorneys have used to further this campaign. The remainder of the Comment considers the role of politics (Part VII), policy (Part VIII), and publicity (Part IX).

II. MOUNTAINTOP REMOVAL

Coal was discovered in the eastern United States soon after colonization, and large scale extraction commenced shortly thereafter. (3) Central Appalachia has always been a large producer of the country's coal and remains a major area for coal mining, currently second only to Wyoming's Powder River Basin. (4) Coal can be extracted via surface or underground mines. (5) While underground mines are still the most common form of Coal mining in Appalachia, surface mining has grown considerably due to the practice of mountaintop removal--a type of strip mining that utilizes explosives to blast as much as 800 to 1,000 feet off of the tops of mountains to access underlying coal deposits. (6) "In the United States, one hundred tons of coal are extracted every two seconds. Around 70 percent of that coal comes from strip mines, and over the last twenty years, an increasing amount comes from mountaintop removal sites." (7) This technique uses a combination of ammonium nitrate and diesel fuel as the explosive--the same mixture used in the Oklahoma City bombing, except each blast is at least ten times more powerful and hundreds are set off each day. …

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