Activist Appalachian law firm wages war on coal

By Manuel Quiñones | 07/15/2015 01:09 PM EDT

A meeting in 1997 with a coal miner protesting one of the largest strip mines ever proposed in West Virginia helped launch a young attorney’s decadeslong fight against his state’s coal industry. “We’ve cost the coal industry billions of dollars, and that’s a very good thing,” said Joe Lovett, the executive director of Appalachian Mountain Advocates.

A meeting in 1997 with a coal miner protesting one of the largest strip mines ever proposed in West Virginia helped launch a young attorney’s decadeslong fight against his state’s coal industry.

Joe Lovett was then a rookie lawyer for Mountain State Justice, a poverty advocacy group, when he met the man who would be hist first client, James Weekly of Pigeonroost Hollow, who lived a few hundred yards from Arch Coal Inc.’s massive Spruce mountaintop-removal project.

Weekly’s opposition to Spruce made him a national symbol of resistance against mountaintop-removal (MTR) mining. And Lovett became a leading mountaintop-mining foe, eventually launching his own firm focused on environmentalism.


"We’ve cost the coal industry billions of dollars, and that’s a very good thing," said Lovett, the executive director of Appalachian Mountain Advocates. "It’s my view that we need to move to renewable energy in this country."

Lovett’s first shot against mountaintop-removal mining was also his first lawsuit, filed in U.S. District Court for the Southern District of West Virginia in 1998 on behalf of Weekly and nine other West Virginians, including Mingo County resident Patricia Bragg.

The target of the lawsuit, Bragg v. Robertson — Dana Robertson headed the Army Corps of Engineers’ district office in Huntington, W.Va. — was Clean Water Act dredge-and-fill permits issued by the corps, and state strip-mining permits issued by the West Virginia Department of Environmental Protection under authority of the federal Surface Mining Control and Reclamation Act (SMCRA).

Judge Charles Haden ruled for the plaintiffs in 1999, saying the Clean Water Act and SMCRA didn’t allow regulators to permit the destruction of waterways through the dumping of rocks and soil from mountaintop projects into nearby valleys.

"When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments," Haden wrote. "Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream, there is no water quality."

A well-known West Virginia politician before becoming a federal judge, Haden — an appointee of President Ford — was not known for being an environmental crusader. But his ruling roiled the industry, created chaos in mountaintop coal mine permitting and emboldened foes of the practice like Lovett.

Joe Lovett
Joe Lovett is founder and executive director of Appalachian Mountain Advocates. | Photo by Manuel Quinones.

Lovett, 56, came late to the law despite being the son of an attorney in Charleston, W.Va., according to Penny Loeb’s book "Moving Mountains."

"I didn’t know MTR existed until I took the job with Mountain State Justice," said Lovett, who also learned about the issue from an article by Loeb in U.S. News and World Report.

Still, Lovett was keenly interested in social justice. After graduating from Vanderbilt University, he went on to study farming at Virginia Tech, the book says, and worked at a vegetable farm outside Washington, D.C. Lovett declined in a recent interview to talk about himself, saying he wanted to keep the focus on the work of his firm.

But the book says he became disillusioned with the university’s focus on corporate farming. Lovett was interested in growing organic. He also tried philosophy but never completed his doctoral dissertation.

It wasn’t until 1992 that he attended the University of Pennsylvania Law School, graduating in 1995. He served as a clerk for Haden, the judge in Bragg. Lovett said he saw an opening and applied.

Appalachian Mountain Advocates — whose original name was Appalachian Center for the Economy and the Environment — operates from no-nonsense offices above an antiques store.

Lovett said he got a grant to go out on his own and leave Mountain State Justice. "I was the only environmental lawyer there, and I wanted to have company," he said.

His firm’s offices in historic downtown Lewisburg, W.Va., are a 9-mile drive from the Greenbrier resort, a luxury retreat owned by coal mine owner and West Virginia gubernatorial candidate James Justice.

"We’re not cursed with coal here," Lovett said of Lewisburg and Greenbrier County. "We’re lucky we live in an area where there isn’t coal. We’re on limestone, not coal."

Coal mining critics in West Virginia often have to deal with threats or animosity. Lovett said, "I only get support from people. Every once in a while, somebody will say something else."

Defining ‘waste’

Haden’s 1999 ruling shocked the Appalachian coal fields.

"All hell broke loose in West Virginia. All hell broke loose in [Washington,] D.C.," said Derek Teaney, Appalachian Mountain Advocates senior staff attorney.

Teaney, also a West Virginia native, joined the firm in 2006 as a fellow. At Lewis & Clark Law School, he read cases by attorney Jim Hecker, environmental enforcement project director at Public Justice, who has been deeply involved in Bragg and numerous key cases against mountaintop-removal mining.

West Virginia politicians, including the legendary Sen. Robert Byrd (D), said the decision would devastate the coal industry. They pressed President Clinton to join them in trying to undo it through a spending bill rider. The president almost did until environmentalists pushed back and Haden agreed to stay his ruling pending appeal.

Appalachian Mountain Advocates
Appalachian Mountain Advocates offices are atop an antiques store in quaint Lewisburg, W.Va. | Photo by Manuel Quinones.

In 2001, the U.S. Court of Appeals for the 4th Circuit reversed Haden, delivering a blow to environmentalists and creating lasting precedent for litigation concerning mountaintop-removal coal mining.

The appellate court’s decision rested on SMCRA allowing states to run their own strip-mine permit programs with limited oversight by the Interior Department’s Office of Surface Mining, Reclamation and Enforcement. Once the office approves a state’s rules, the federal authority "drops out," the court ruled.

"It really took the life out of SMCRA, and it made it very difficult to enforce the surface mining statute," said Teaney. He said the ruling was a reason groups began focusing more on litigation under the Clean Water Act.

Environmental groups, represented by Lovett, cheered Haden again in 2002. In another landmark ruling, the judge said valley fills violated the Clean Water Act. He called them illegal waste disposal.

Lovett played a key role in his deposition of Rodney Woods, a permitting manager for the Army Corps at the time.

Asked by Lovett how the agency decided to regulate and authorize valley fills, Wood said, "I’m not sure that they necessarily specifically intended to regulate the valley fill itself along the way. Maybe it just sort of, I don’t know, maybe they just sort of oozed into that."

Lovett: "You testified that the definition of fill material excludes waste material, the corps’ definition of fill excludes waste?"

Woods: "I will grant you that."

Almost immediately, the George W. Bush administration stepped in to promulgate a rule expressly allowing the definition of fill material under Section 404 of the Clean Water Act to include rock and debris from mountaintop mining. The decision remains controversial.

Haden held an injunction against valley fills in place despite the new rule. But in early 2013, the 4th Circuit said the judge had gone too far. The Clean Water Act, the appeals court decided, did not outlaw valley fills. And it has gone on to support the practice in other cases.

‘A wealth of information’

Lovett and environmental groups then went after Nationwide Permit 21, a streamlined federal permitting for mountaintop-removal mines. They said large strip mine projects required individual permits.

But after West Virginia U.S. District Court Judge Joseph Goodwin agreed and ruled against a number of streamlined permits in 2004, the 4th Circuit once again sided with the corps in 2005.

"Ultimately, through perseverance, we were able to get the Nationwide Permit [21] struck down," Teaney said.

Derek Teaney
Derek Teaney is senior staff attorney for Appalachian Mountain Advocates. | Photo by Manuel Quinones.

In 2010, the Obama administration suspended the use of Nationwide Permit 21 in West Virginia, Kentucky, Ohio, Pennsylvania, Tennessee and Virginia.

And in 2012, the Army Corps revived the permitting for projects whose impacts are limited to a half-acre and 300 linear feet of streambed. It no longer applies to valley fills.

Even though Haden’s ruling against valley fills didn’t stand in Bragg, the Bush administration agreed to a programmatic environmental impact statement of Appalachian mountaintop-removal mining. It released the EIS in 2005.

"The EIS provided a wealth of information and confirmed a lot of our belief about how destructive this process was," Teaney said.

The lengthy document has figured in work done by Appalachian Mountain Advocates in support of groups like the Sierra Club, Appalachian Voices, the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition on dozens of lawsuits against companies and regulators.

The firm helped secure a settlement with Alpha Natural Resources Inc. and Consol Energy Inc., requiring the companies to install new technologies for curbing selenium — a chemical element associated with strip mining waste — at nine West Virginia operations.

Litigation by Appalachian Mountain Advocates also helped lead to a settlement between Alpha and the Justice Department, requiring the company to pay more than $27 million in fines to resolve thousands of Clean Water Act violations.

And this week, the firm helped launch a new federal suit against an Arch subsidiary in West Virginia, accusing the company of failing to restore streams as required by its permit. Plaintiffs say it is the first time they have sued to enforce a Clean Water Act Section 401 water quality certification.

"If we can force them to treat some of these pollutants and remove them from the water, they will internalize the cost," Teaney said. "And hopefully that will level the playing field in southern West Virginia between coal and renewable energy."

Appalachian Mountain Advocates is also part of a case against U.S. EPA’s approval of Kentucky’s new selenium standards, which rely more on fish tissue samples rather than water tests. Groups say they make it harder for them to monitor.

Starting with a West Virginia focus, Appalachian Mountain Advocates has been working to replicate its strategy in more places throughout the region. Last year, it helped defeat A&G Coal Corp. in a case over selenium releases in Virginia.

Nationally, the group has been part of litigation by the mining industry against EPA over its enhanced scrutiny of mountaintop-removal mining. The U.S. Court of Appeals for the District of Columbia Circuit sided with the agency.

The court also favored EPA’s ability to veto corps permits for the Spruce mine years after they were issued. The court is now considering whether the agency was right on the merits.

"We’ve had a lot of success with what we’ve done. We try to pick cases that are going to have a large impact," Teaney said. "We want the resources that we expend to have some sort of impact beyond the case that we are bringing."

Lovett once said he thought the initial litigation would bring down mountaintop mining. "I honestly believed when I filed that case, the Bragg case, we would end mountaintop removal," he said.

"If you judge it by that standard, we’ve been pretty miserable failures."

‘Lawyers profit’

But Lovett also recognized his firm’s influence. He pointed to another part of the Bragg litigation, where West Virginia regulators agreed to reform reclamation rules stemming from SMCRA requiring companies to return the land to approximate original contour (AOC).

"I think we’ve probably reduced impacts to streams by 40 percent because of the AOC policies that were part of the Bragg case, I think the disturbed areas [are] 40 percent smaller than we started," said Lovett. "So far, we’ve managed to stop the Spruce mine."

The firm will soon have six full-time attorneys and a staffer focused on development, who will be based in a satellite office in Charlottesville, Va.

Lovett credits citizen suit and fee-shifting provisions in SMCRA and the Clean Water Act. If environmental group plaintiffs win, defendants pick up the tab.

"We don’t win everything, but we win enough of those to keep going with the other sources that we have," Lovett said. "I think you have to win some cases to do it, but we’ve managed." Funding also comes from foundations and individual supporters.

Congressional Republicans and industry advocates grumble about citizen lawsuit provisions, accusing groups like Lovett’s of gaming the system to their advantage and tying the economy up in red tape.

"I understand that they have a grievance, I understand that’s why we have a court system," said Bill Bissett, president of the Kentucky Coal Association, "but they also deserve a portion of responsibility for an increased level of poverty and pessimism around Appalachia because of their actions."

He added, "And in many cases, these lawyers profit from their legal challenges to our industry and, at many cases, at a dollar per hour far higher than the lawyers we employ."

Lovett’s response: Citizen lawsuits essentially deputize "private attorneys general" as a backstop for weak regulators.

"Without the citizen suit provisions, there would be no check on the coal industry, certainly in West Virginia, Virginia, Kentucky and Tennessee," he said.

He added, "The salaries that we pay pale in comparison to the lawyers the coal industry hires. We’ve never had a court tell us that our hours and rates were unreasonable. We don’t keep those things. They go back into the nonprofit and support cases we lose or cases that don’t generate fees."

Appalachian Mountain Advocates’ IRS Form 990 records from 2013 show the firm had just over $2 million in assets. It spent roughly $500,000 on salaries and employee compensation.

"I promise you that people who work here and in the nonprofit work generally make less than our counterparts who work in the coal industry," Lovett said. "But the good thing is, we can go to sleep at night feeling good about what we’ve done."

Focusing on natural gas

Lovett has not only focused on litigation. He tried to push lawmakers on Capitol Hill against mountaintop mining, relying at first on Earthjustice attorney Joan Mulhern to help show him the ways of D.C. Mulhern died in late 2012.

Lovett leaned back, appearing frustrated, during a congressional hearing in 2011 when pro-coal lawmakers ignored his warnings about Appalachian strip mining and focused on defending the industry.

The firm is also venturing more into the region’s growing natural gas industry. It is helping landowners challenge a controversial Virginia law allowing pipeline companies to survey properties without owners’ permission.

It’s all part of the firm’s push against fossil fuels and toward renewables. "And that’s only going to happen if coal companies, and now gas companies, are forced to pay the real cost of their business, and [the way] to make sure that happens is to make sure the laws are enforced," Lovett said.

"Unfortunately, the natural gas industry has been pretty good lobbyists for themselves, and they are not very well regulated by the Clean Water Act and other environmental statutes coal has had to deal with. I think fracking, as bad as it is, isn’t anything like mountaintop removal."

States have long denied they aren’t up to the job of regulating extractive companies. At the same time, their leaders are not shy about promoting mining or drilling as a way to promote jobs.

Bissett, who interacts more with the Kentucky-based Appalachian Citizens’ Law Center and the Kentucky Resources Council but has experience with Appalachian Mountain Advocates, said, "Here we have people with a law degree and a political agenda gloating about taking food off the table of working families."

Lovett says states should have used money from natural resource extraction for broader economic development. And now, they should be focused on moving away from coal and natural gas.

About the growth in drilling, Lovett said, "We’re reaping right now what we sow, more exploitation by a different industry. It’s a beautiful state. People are kind. It’s a shame we’re wasting our potential here."

Teaney said Appalachian Mountain Advocates has encountered resistance from regulators at every step along the way. Successes have not come easy or smoothly.

"’Slog’ may capture it better. It hasn’t been a straight line, and it hasn’t been an unimpeded course," he said. "We’ve always found a way around it. I think we have changed the practice of surface mining in central Appalachia."