Tuesday, December 5, 2023 | Back issues
Courthouse News Service Courthouse News Service

Conservation groups sue feds in bid to protect endangered species from Appalachian coal mining

The endangered Guyandotte River crayfish, one of three at-risk species centered in the lawsuit, has suffered a 93% habitat loss due to coal mining activity in the region, conservationists say, limiting the species to just two creeks in West Virginia.

WASHINGTON (CN) — Environmental groups filed a lawsuit Wednesday urging the federal government to enact protections for endangered fish and crawfish found in Kentucky, Virginia and West Virginia as they groups say nearby coal mining operations are driving the species to potential extinction. 

The suit, brought by the Center for Biological Diversity and Appalachian Voices in the U.S. District Court for the District of Columbia, slammed the U.S. Fish and Wildlife Service, saying the agency had ignored the significant impacts of coal mining sedimentation and approved hundreds of mining permits without the required protections. 

The environmental groups list the Office of Surface Mining, Reclamation and Enforcement as a second defendant in the suit. The agency is the regulatory body in charge of enforcing environmental and health requirements on coal mines and mitigating the impacts of such mines after they are closed or abandoned. 

“Every state and federal agency responsible for implementing endangered species protections is asleep behind the wheel,” Perrin de Jong, staff attorney for the Center, said in a statement.

According to the Center, the endangered Guyandotte River crawfish and candy darter, as well as the threatened Big Sandy crawfish, have all been heavily impacted by erosion and sedimentation caused by surface coal mining in the area.

The Guyandotte River crawfish has virtually disappeared, the lawsuit says, suffering a 93% loss of its range. The species can now only be found in two creeks in West Virginia.

The Big Sandy crawfish has likewise been wiped out from over 60% of its range and now limited to the upper Big Sandy River basin spanning southern West Virginia, eastern Kentucky and southwest Virginia. Meanwhile, the endangered candy darter has lost 49% of its habitat, with the species now mostly limited to the Gauley and New River basins in West Virginia and Virginia, according to the lawsuit.

“If [regulators] put as much effort into following the law as they do helping the coal industry dodge its obligations to prevent extinction, these species would be in a much better place today,” de Jong said.

The conservation groups note in their lawsuit that in 2020, the Fish and Wildlife Service updated a 1996 biological opinion — meant to analyze the effects of coal mining activities regulated by the Surface Mining Control and Reclamation Act and bring it in compliance with the Endangered Species Act — because the agency found the previous opinion was not protecting species and their habitats.

The agency cited a number of species, including the endangered Guyandotte River crawfish and threatened Big Sandy crawfish, the conditions of which had worsened over the past two decades. 

The new opinion required states to work with the Fish and Wildlife Service to ensure that any coal mining permit that could affect listed species or critical habitat include so-called “Protection and Enhancement Plans” with species-specific protective measures in order to be approved. 

Enforcement was left up to the Office of Surface Mining, Reclamation and Enforcement.

Despite that requirement, the conservation groups say they found hundreds of mining facilities that threaten species and still operate without the mandated protection measures. 

In Kentucky, for example, state officials sought the agency’s opinion on 94 mining permits after the environmental groups complained there were 157 noncompliant permits within 3 miles upstream from the upper Big Sandy River basin. According to the suit, Kentucky wrongly claimed that 79 of the permits did not need protection plans, an argument which the agency accepted. 

This was despite the Fish and Wildlife Service’s internal guidance, which acknowledges that coal mining facilities can impact species up to 12 miles downstream, Wednesday's lawsuit says.

“FWS ignored the best available science, and as a result dozens of permitted mining facilities continue to operate without the necessary protections to ensure against jeopardy and adverse modification for the Big Sandy [crawfish],” Hannah Connor, an attorney for the Center, wrote in the lawsuit. 

Even when the agency did open an investigation into the permits, it quickly accepted Kentucky's assertions that no protection measures were necessary. 

With hundreds of mining facilities operating with no protection plans in place, this issue is not limited to Kentucky, according to the Center’s press release announcing the suit.

Instead, the group accuses federal regulators of what it calls "wholesale failure" to protect species from the impacts of mining — including by failing to fully implement procedures from the binding 2020 opinion.

In their lawsuit, the conservation groups asked for various forms of relief — including an injunction declaring the federal agencies have failed to comply with the 2020 opinion and a finding that the Office of Surface Mining had violated the Endangered Species Act.

The Fish and Wildlife Service could not be reached for comment by press time. The Office of Surface Mining declined to comment on pending litigation. 

Follow @Ryan_Knappy
Categories / Environment, Regional

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.