One of America's most dramatic environmental battles is unfolding in southern West Virginia. Coal companies are blasting the mountains, decapitating them for coal. The forested ridge tops and valley streams of Appalachia—one of the country's natural treasures—are being destroyed, along with towns and communities. An entire culture is disappearing, and to this day, most Americans have no idea it's happening.
Michael Shnayerson first traveled to the coal fields four years ago, on assignment for Vanity Fair. There he met an inspiring young lawyer named Joe Lovett, who was fighting mountaintop removal in court with a series of brilliant and daring lawsuits. He also met Judy Bonds, whose grassroots group, the Coal River Mountain Watch, was speaking out in a region where talking truth to power was both brave and dangerous. The two had joined forces to take on Massey Energy, the largest and most aggressive of the coal companies, and its swaggering, notorious chairman, Don Blankenship.
Coal River is Shnayerson's account of this dramatic struggle. From courtroom to boardroom, forest clearing to factory floor, Shnayerson gives us a novelistic and compelling portrait of the people who risked their reputations and livelihoods in the fight against King Coal.
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About the Author
Michael Shnayerson is a contributing editor to Vanity Fair. His books include The Car That Could: GM’s Revolutionary Electric Vehicle and The Killers Within: The Deadly Rise of Drug-Resistant Bacteria with co-author Mark J. Plotkin.
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By Michael Shnayerson
Farrar, Straus and GirouxCopyright © 2008 Michael Shnayerson
All rights reserved.
THE TIP-OFF FROM TONY
Night fell on the mountain where Tony Sears lived, but darkness never came.
From the valley below, a yellowish phosphorescent glow lit the hills on either side and beamed up into the southern West Virginia sky, obliterating the stars. On his porch, Tony could hear the trucks returning from the mines and groaning to a stop by the conveyor belt, and then the rumble of raw coal filling the belt's cars, and the grinding of the belt as the cars rode to the preparation plant. He couldn't see the men in the prep plant spray the raw coal with water and chemicals to free it of dirt and debris. He couldn't hear the coal get crushed to chunks or pulverized into dust. But he knew when the cleaned coal was loaded on trains, because the trains lurched off in the night to market, away from the always bright fenced site they called Green Valley.
Tony was used to all this, and there was nothing to be done, but he kept an eye on the growing number of pits where liquid waste from cleaning the coal was put. The pits looked like swimming pools, Tony thought — a lengthening row of swimming pools filled with toxic sludge. Beside them rose the piles of solid waste: the rock and dirt and debris from which the coal had been separated. Those piles rose all the time. So Tony wasn't surprised by the rumor he heard on Thursday, April 1, 2004, that Green Valley was about to start pushing debris into a nearby tributary of Hominy Creek. But he was mad.
Hominy Creek wasn't just any stream winding its way through a wooded Appalachian valley. It was one of the best native-reproducing brown-trout streams in southern West Virginia. Tony Sears loved that stream. At forty-three, he'd fished Hominy Creek his whole life. So had his father and grandfather for theirs. Many of Tony's neighbors in the forested hills and hollows of Nicholas County could trace their families back nine generations. Tony knew only as far back as four, but all four had lived in the family's wood-frame mountaintop house. And all four had fished Hominy Creek. Now, if the rumor was true, Green Valley was about to start burying the creek because the company had run out of storage space on site for its solid debris.
Once before, Tony had gone up against Green Valley. That time, he'd heard the company intended to dispose of some of its liquid waste by injecting it into nearby abandoned underground mines. Together with a few neighbors, he'd raced up to a meeting of the West Virginia Surface Mine Board to explain that those abandoned mines contained the underground stream that nearly one hundred people depended on for drinking water. He'd walked in to see a row of lawyers in suits and ties representing Massey Energy, the huge coal company based in Richmond, Virginia, that owned Green Valley, along with so many subsidiaries in the Appalachian states.
The chairman of the Surface Mine Board asked if both sides were ready to proceed. The Massey lawyers said they were. Tony raised his hand. He didn't have a lawyer. He and his neighbors were representing themselves. "You-all are dealing with lawyers and everything, we're poor people from the community," Tony said. "We've got to do our own legwork.... I can't really see how you-all can say that we should be as ready as you-all."
"There's four board members down here," the board chairman retorted, "and ... about ten other people sitting across the table from you, that have scheduled this for today. Why didn't you tell us earlier that you needed more time?"
Tony began to feel his temper rise. "We have time, too, you know, we're taking out of our time also."
The chairman convened the hearing anyway. Massey's chief lawyer, Bob McLusky, explained that the engineers had done their work well. The slurry would be injected, at five hundred gallons per minute, into an abandoned mine across the valley from the one that had the underground stream Tony and his neighbors relied on for drinking water. So the stream would not be at risk. What was more, the slurry would be injected at an elevation fifty feet below it. The slurry would have to flow uphill and across the ridge to cause any problem. And everyone knew water didn't flow uphill.
"What are the chances," Tony asked, "of those two mines being connected?" The hills were catacombed with mines that might easily connect with one another at points no one now knew about. "I can't see how you can jeopardize all of our water and our livelihood," Tony said, "by relying on a map that's — what — fifty-eight years old."
On it went, sometimes comically: the lawyers cool and controlled, using technical and legal terms, Tony and his neighbors jumping up to say what they knew about their hills and old mines. Usually the Surface Mine Board sided with the coal operators. That was the way things worked in West Virginia. This time, though, it didn't. The board chairman ordered Massey to test the injection system with dye-colored water before putting slurry into it, given the risks that Tony and his neighbors had described. The slurry was designed to come out at two discharge points at the bottom of the hill. "If dye never comes out of those discharge points, then there'll be no slurry injection," the chairman said to the coal-company lawyers, "because it's not working the way you-all thought it was going to."
McLusky, the Massey lawyer, was stunned. "Well, to drill a hole for a five-hundred-gallon-a-minute discharge and a test is big bucks," he said weakly. "And then I find I can't use it, it's a half-million-dollar hit or so. We will have done the whole project and ..."
Green Valley never did run that dye experiment for half a million dollars. Quietly, it abandoned its slurry-injection plan. A backcountry West Virginian and his neighbors had stood up to Charleston's highest-paid coal-company lawyers — and won.
This time, Tony was better prepared. He knew a lot more about Green Valley than he had before. And he knew a lawyer who could help.
The message light on Joe Lovett's phone was blinking when he reached the two-room office he kept in a small commercial building in Lewisburg, the genteel town of colonial-era brick buildings east of Beckley, where he lived. The Appalachian Center for the Economy and the Environment was, like other nonprofits on the L-shaped second floor, rather less grand than its name. Joe's room had two desks and a futon sofa. The adjacent room had a third desk for a part-time fund-raiser or summer intern. The rent was $250 a month.
Joe's office looked more like a college dormitory room than a lawyer's sanctum. The wood-paneled walls were bare but for posters of Louis Armstrong and Robert Frost. The scuffed wood desks were strewn with papers and topped by computers. On the lumpy futon lay scattered books that Joe might have just brought in from class: a collection of Frost's poems, Saul Bellow's Herzog, a book of gardening essays.
At forty-four, Joe still resembled a college student himself, with clean good looks, round, metal-framed glasses, a full head of brown hair cut boyishly short, and a lean, athletic build usually garbed in a denim shirt, chinos, and hiking shoes. He had a student's restlessness — he was always in motion — and yet when he plunged into writing a court motion he stayed grimly focused for hours, lacing his strong, clear sentences with the case histories and regulatory references that gave them legal heft. His one indulgence in the office, if it could be called that, was a straight-backed wooden rocker, like the one President Kennedy had favored in the Oval Office. Rocking as he fielded calls, he took in the news of each coal-company move with the saturnine humor of a battle-tested lieutenant whom the enemy could surprise but no longer astonish.
"Have they done anything yet?" Joe asked when Tony Sears passed on the rumor about Hominy Creek.
No, Tony said, not as far as he could see. As of that afternoon, no debris had been dumped in the stream.
Joe's first call was to the local office of the U.S. Army Corps of Engineers in Huntington. The Corps had no direct authority over mountaintop mining. It was, however, responsible for America's waters. Since mountaintop mining almost inevitably buried valley streams with debris, the Corps, to its deep and eternal regret, had been assigned under the Clean Water Act to be the watchdog for those streams. Specifically, it was charged with granting — or denying — permits to fill in those streams, based on how much environmental damage the projects would do. Army Corps engineers liked building bridges and dams. They liked to reroute water in the Everglades, then route it back again. That was manly work for Army engineers. Looking at plans for yet another mountaintop-mining site in Appalachia was a bore. When the Clean Water Act had passed in its initial form in 1972, mountaintop mining was a novelty, practiced on a few small-scale sites. The engineers could handle that. Now the practice had exploded — literally — all over the coalfields, with vastly larger sites that often spread one to the next, contiguously, making things easier for the heavy equipment that scraped the mountaintop "overburden" away. More sites meant more streams filled in. That, in turn, meant more permits needed from the Corps. The Army Corps engineers, as far as Joe could tell, did little more than rubber-stamp the projects to get them off their desks.
Joe asked the bureaucrat he reached if the Corps had just granted Green Valley a permit for dumping debris in a tributary of Hominy Creek.
"Yep," came the reply.
The permit, granted ten days before, allowed Green Valley to fill in exactly 431 feet of the tributary with prep-plant waste, rock, and dirt. The debris would obliterate the stream and climb up the sides of the valley through which the tributary ran. The mining industry had a bland, almost soothing term for this procedure: a valley fill.
The permit that the Corps had issued Green Valley was called a Nationwide 21. The Corps issued this kind of permit when it found that the prospective fill would cause "minimal adverse" environmental effects. Because the effects were "minimal," no public notice was required.
"I thought Green Valley was going for an IP," Joe said grimly. He meant an individual permit, the kind that involved a lot more scrutiny by the Corps and public review as well. Coal companies hated going for IPs, but when they had big plans, they sometimes had no choice.
"This is for a much smaller area," the bureaucrat informed Joe. "That's why it qualified for a Nationwide 21."
Green Valley had pulled a fast one, Joe realized. Once again, he was surprised but not astonished.
The previous October, Joe had filed suit in a West Virginia federal court to try to stop the Corps from issuing Nationwide 21s at all. Mountaintop removal caused far more than "minimal adverse effects," he declared. So the Corps was violating the Clean Water Act — not to mention the National Environmental Policy Act — by using them to sanction valley fills and the massive destruction they brought.
At the time Joe filed his suit, Green Valley had applied for a Nationwide 21 to do far more than fill a tributary of Hominy Creek. The company proposed to dump twenty million tons of waste over 422 acres. The plan called for a large valley fill, along with an impoundment. An impoundment was a huge dam, usually built against the crook of two hillsides, for storing liquid waste or slurry from cleaning coal. Some of the slurry sank to the bottom of the impoundment and hardened. The rest stayed on top as a toxic stew. From a low-flying plane, an impoundment looked like an alpine lake, except that lakes in the Alps are blue and the liquid in an impoundment is black. The more slurry was dumped into it, the higher an impoundment had to be built up the hillside, until its walls, made of coal waste themselves, reached the top of the ridge into which they were built. Many impoundments contained hundreds of millions of gallons of slurry — quite a few contained billions.
When Joe had filed his lawsuit, Green Valley decided that maybe applying for a Nationwide 21 for all that waste might not be prudent. Better to go for an individual permit. An IP might take a year rather than three months, but going that route would mean that the company would remain unaffected by Joe's lawsuit. It wouldn't be stuck with a Nationwide 21 it couldn't use if Joe won. And even the Corps had to acknowledge that twenty million tons of waste dumped over 422 acres was a big project.
Why then had the Corps granted Green Valley a Nationwide 21 after all? Because, the bureaucrat explained, this new application applied only to the 431 linear feet of streambed that led into Hominy Creek. The Corps, an agency not known for lightning-quick responses, had authorized this work under Nationwide 21 in just eight days. With no public review, Green Valley would have filled in that stream before Joe found out about it — if Tony Sears hadn't lived right next door.
For the hardy few in West Virginia who took on the coal industry, a little paranoia came with the territory. Was it coincidence that a coal truck in one's rearview mirror was tailgating on a winding two-lane road? Was it just nerves to imagine that the long, deep scratch along the side of one's car was the work of a coal-company flunky, not a random vandal? Certainly it didn't take much paranoia for Joe to wonder if the Corps had colluded with Massey to help it fill a stream with solid waste. But that wasn't a question he could answer. All he could determine was whether or not its action was legal.
That afternoon, Joe went on one of his twenty-five-mile bike rides from his office down the meandering Greenbriar River. It was a beautiful ride, past farms to a trail that cut through the woods, and it never failed to loosen the tension that came from being the state's most active environmental lawyer. Joe rode to stay fit — and he was — but he valued even more the chance biking gave him to think how to counter a new coal company threat.
Joe didn't get through to Bob McLusky until Friday morning. The coal company's lawyer had been traveling. He traveled a lot. His firm, JacksonKelly, had grown so wealthy representing Massey Energy and its many subsidiaries that it now kept private planes at the Charleston airport. If Massey's notorious chairman and CEO, Don Blankenship, wanted McLusky at Massey's corporate headquarters in Richmond in an hour, McLusky could get there.
"So, Bob," Joe said coolly, "can't your client wait until our suit is heard before filling in the stream?"
McLusky explained that the waste site was sorely needed. Green Valley had run out of space to store its solid debris. "We're going to start soon," McLusky said.
"Then I'm going to seek an injunction," Joe said. He would ask the judge in the Nationwide 21 suit for a temporary restraining order, or TRO, that would put a stop to the work. Then he added, as an afterthought, "Nothing's going to happen this weekend, right?"
No, McLusky said. Besides, the weather was supposed to be bad.
After Joe hung up, he called the chambers of U.S. District Judge Joseph R. Goodwin in Charleston. Joe spoke to the judge's clerk. "We need a hearing next week," Joe said. "We've got an emergency here."
That weekend in Lewisburg, Joe talked a lot on the phone to Jim Hecker, the Washington, D.C., environmental lawyer he'd worked with since first taking on the coal industry nearly eight years before. A decade older, more brooding and professorial than Joe, Jim had served as a mentor. At Trial Lawyers for Public Justice, where he worked, Jim had brought hundreds of citizens' suits based on the Clean Water Act. He hadn't known a thing about coal-mining law when Joe called him out of the blue in 1997. He'd never seen the coalfields of West Virginia. But he knew about public-interest law. He was also the only lawyer willing to answer Joe's questions and, eventually, to serve as co-counsel. He'd done it ever since.
Over the weekend, Joe studied Green Valley's freshly granted Nationwide 21 permit. Then he compared it to the broader individual permit that Green Valley was still seeking. That's when he saw what the company had done.
Green Valley had simply cut away part of its proposed 422-acre waste site and presented this smaller chunk — about sixty-seven acres — as a separate site, small enough to qualify for a Nationwide 21. The Corps had approved the idea. So had the West Virginia Department of Environmental Protection (DEP), which had to grant a state permit to go along with the federal one. But the Clean Water Act forbade what it called "segmenting": chopping a large proposed permit site into smaller ones so that the smaller ones could all be granted Nationwide 21s without public review.
Excerpted from Coal River by Michael Shnayerson. Copyright © 2008 Michael Shnayerson. Excerpted by permission of Farrar, Straus and Giroux.
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Table of Contents
PROLOGUE - A VALLEY UNDER SIEGE,
ONE - THE TIP-OFF FROM TONY,
TWO - A BRUTE FORCE CALLED MASSEY,
THREE - FIGHTING BACK,
FOUR - A SHORT-LIVED LEGAL VICTORY,
FIVE - STACKING THE STATE SUPREME COURT,
SIX - THE WAR WITH WASHINGTON,
SEVEN - A SCHOOL IN MASSEY'S SHADOW,
EIGHT - THE DEAD SOULS OF SMITHERS,
NINE - MARCHING IN THE VALLEY,
TEN - MASSEY'S UNWELCOME NEW FRIEND,
ELEVEN - DON'S TERRIBLE YEAR,
TWELVE - TURNING A COURTROOM LOSS AROUND,
THIRTEEN - A WALK THROUGH WEST VIRGINIA,
FOURTEEN - BACK IN COURT AGAINST THE CORPS,
FIFTEEN - DON GOES FOR IT ALL,
SIXTEEN - A RULING AT LAST,
EPILOGUE - THE VIEW FROM KAYFORD MOUNTAIN,
ALSO BY MICHAEL SHNAYERSON,