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Desecrated Places

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\\server05\productn\H\HLE\34-2\HLE203.txt unknown Seq: 1 26-JUL-10 11:11VOICES FROM THE DESECRATED PLACES: A JOURNEYTO END MOUNTAINTOP REMOVAL MININGSam Evans*I. The History of Mountaintop Removal in Appalachia .......... 523RA. Mountaintop Removal Mining: A Primer ................ 523RB. The Socio-Political Climate in the Coalfields ............ 529R1. The Current Permitting Authorities .................. 529R2. Why Not a Legislative Solution? .................... 531R3. Conflict in the Courts .............................. 531R4. Local Resistance and Green Economics ............. 533R5. Environmental Injustice ............................ 535R6. The Petition: Why “Fill,” Why Now? ............... 536RC. A Brief History of Fill ................................. 537R1. The Statutory Significance of Fill ................... 539R2. Historical Limits to the Corps’ Jurisdiction .......... 540R3. Illegal Permits, Court Challenges, and the Resulting“Effects-Based” Definition of Fill ................... 541RII. The Effects-Based Definition of Fill is Unlawful .............. 543RA. The CWA is Unambiguous: “Fill” Must Be Defined byReference to the Purpose of the Project ................. 543RB. The Effects-Based Rule Is Unreasonable ................. 545R1. Ignoring Their Own Rule: Construction-RelatedDischarges ........................................ 546R2. Coeur Alaska v. Southeast Alaska ConservationCouncil ........................................... 547RC. The Likelihood of Agency Capture ...................... 550R1. The Corps’ Susceptibility to Industry Influence ....... 551R2. The Corps’ Policy Outcomes ........................ 553R* Law Clerk, United States Magistrate Judge; J.D., University of Tennessee College ofLaw, 2009. The views expressed herein are solely those of the author and do not reflect theviews of his current or former employers. I would like to thank Professors Dean Hill Rivkinand Becky Jacobs of the University of Tennessee College of Law, who supervised the indepen-dent study that produced this Article, for their advice and encouragement. I would like tothank Missy Petty, a conservation fisheries biologist from Knoxville, Tennessee, who rodewith me for five days from Knoxville to Rock Creek, West Virginia in terrible weather andchallenging terrain; Matt Richardson, who followed me by car all the way to Washington, D.C.taking pictures, updating our blog, and generally taking care of Missy and me; Chris Pohow-sky, who accompanied me from Hightown to Harrisonburg, Virginia over five mountainpasses in the slushy snow; and my wife Rebecca Falls, who was indispensable in helping meprepare for the trip.I would also like to thank all our hosts along the route, and everyone else who encouragedus. Thank you Frances Lamberts, Adam Wells, Tracy and Wayne Hancock, Terry and WilmaSteele, Mathew Louis-Rosenberg, Matt Norpel, Rory McIlmoil, Larry and Carol Gibson,Mayor Pete Hobbs, Katheryne Hoffman, Carolyn Pohowsky, Marley Green, and Chris andShivani Sutton. Thanks also to Rob Perks, Jon Devine, and Patrice Simms of the NaturalResources Defense Council, who were kind enough to physically deliver the petition to theappropriate officials at the Environmental Protection Agency after the transition. This wouldnot have been possible without you.\\server05\productn\H\HLE\34-2\HLE203.txt unknown Seq: 2 26-JUL-10 11:11522 Harvard Environmental Law Review [Vol. 343. What About EPA? .................................. 554RD. Corps and EPA Jurisdiction should be Delineated by aPurpose-based Rule .................................... 554RIII. Valley Fills Are Waste, Not Fill ............................. 557RA. OVEC v. Aracoma Coal ................................ 557RB. “Equal or Better Use” ................................. 558RIV. EPA Should Invalidate Outstanding Valley Fill Permits ....... 559RA. EPA’s Authority ........................................ 559R1. Rulemaking or Adjudication? ....................... 560R2. Would Such a Rule Be Impermissibly Retroactive? ... 562RB. Takings ............................................... 565R1. What Has the Permittee Lost? ...................... 566R2. What Hasn’t the Permittee Lost? .................... 568RV. A Clear Obligation ........................................ 570RVI. Epilogue .................................................. 572RThere are no unsacred places;there are only sacred placesand desecrated places.1At its most general, this is a story about words. Poets know the moralof this story already — that the wrong word can destroy something beauti-ful. We trip over it, stumble around it, notice it. “Overburden” is a wordlike that. It’s the word used to describe the soil and rock above a seam ofcoal. After this paragraph, it is a word I will not use. They used to be calledmountains. But where there was coal underneath, Big Coal2 changed thename. With this lexical alchemy, the mountains have been turned upsidedown, and the sacred places have been covered over.But the most important word in the story — the word where the storybegins — is “fill.” It is the word that delineates the jurisdiction of the Envi-ronmental Protection Agency (“EPA”) and the Corps of Engineers under theClean Water Act (“CWA”).3 On January 9, 2009, I mounted my bicycle andpedaled away from my home in Knoxville, Tennessee, to deliver a petitionfor rulemaking asking EPA to change the definition of fill to conform to theletter and spirit of the CWA.4 I was beginning a journey through Appalachia1Wendell Berry, How To Be a Poet (To Remind Myself), 177 POETRY 269, 270 (2001).2For the purposes of this Article, “Big Coal” is comprised of the companies engaged inmountaintop removal mining (“MTR”) in Central Appalachia. They include Patriot Coal,which owns the mine on Kayford Mountain, and Massey Energy, which plans to level theadjacent Coal River Mountain. See Vicki Smith, Coal vs. Wind Power: Energy, ConservationFight Rages In West Virginia Countryside, GRAND RAPIDS PRESS, Nov. 16, 2008, at B5. Bothmountains are discussed herein. Massey Energy is the largest producer of Central Appalachiancoal. JOHN H. HILL & GRAHAM WARK, COAL: MISSING THE WINDOW 27 (2007), available athttp://switchboard.nrdc.org/blogs/ngreene/media/Citibank%20071807.pdf.3See CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1) (2006) (authorizing EPA to issue permitsfor the discharge of any pollutant, except as provided in CWA § 404);


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