Environmental Law has Failed. Can Transformative Ecological Change Begin in Appalachia?
Commentary by Nicholas F. Stump.
Nick Stump (West Virginia Law) joins us as his new book, Remaking Appalachia: Ecosocialism, Ecofeminism, and the Law, has just been published by West Virginia University Press. Like all Commentary here on The Rural Review, this post expresses the personal opinions of the author.
Central Appalachia, a region encompassing parts of West Virginia, Kentucky, Tennessee, and Virginia, often is characterized as a “national sacrifice zone.” Fossil fuel industries have devastated the landscape here and in broader Appalachia for more than a century. They also have profoundly exploited the people along lines of class, race and gender—all in pursuit of maximum profits.
I was raised in Appalachia, and I live and work there now at the West Virginia University College of Law. In my new book, Remaking Appalachia: Ecosocialism, Ecofeminism, and Law, I have concluded that legal reform alone from within our unjust and ecologically unsustainable capitalist system will never guarantee Appalachia a healthy environment where people can live safely. Modern environmental law has failed Appalachia because it works through institutions that have been shaped for decades to ultimately support destructive industry over genuine public and ecological interests.
Instead, I believe Appalachia needs radical social change to make genuine environmental progress—and that it has the ingredients. Many Appalachians are ready to change the course of our region’s future by demanding true system change rather than niche environmental reforms alone.
The 1960s “Environmental Revolution” Led to Modern Environmental Law
Environmental law is, in many ways, a unique legal regime. The framework was enacted in response to the “environmental revolution” of the 1960s, which was a popular movement in the U.S. and beyond where the people protested industrial pollution.
Popular environmental works such as Rachel Carson’s Silent Spring and high-profile ecological disasters like the Santa Barbara oil spill helped catalyze this grassroots environmental movement. The environmental revolution culminated in the first Earth Day in 1970 involving 20 million U.S. protestors.
In response to such public pressure, Congress seemingly took bold steps. It enacted the core of modern environmental law, including such landmark federal legislation as the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA), among numerous other statutes. Federal administrative agencies such as the Environmental Protection Agency (EPA) also were created, to which Congress delegated immense authority. State and local governments thereafter enacted myriad environmental legal frameworks.
Appalachia’s Anti-Surface Mining Movement and SMCRA
In the case of 1960s and 1970s Appalachia, disastrous “surface” coal-mining practices produced niche forms of resistance among the people. Widespread “underground” coal mining was endemic to Appalachia since the latter 1800s. However, by the mid-20th century, industry increasingly adopted mechanized surface mining.
Industry pursued mechanized surface mining due to such factors as technological advances, like large diesel-powered earthmovers required for surface mining operations. As time wore on, industry would come to replace miners with machines in pursuit of greater profits.
Tragically, surface mining also proved environmentally devastating for the Appalachian land and people because of the intensive scale and scope of the practice. Ordinary Appalachians faced destruction of their property, homes, and even lives, such as through exacerbated flooding conditions produced by denuded landscapes, mine spoil-related landslides, and water pollution.
As a result, a rich resistance movement arose in Appalachia. History Professor Chad Montrie has described this movement as an “environmentalism of common people.” Citizens formed organizations such as the Appalachian Group to Save the Land and People and the Appalachian Coalition and worked intensively to “ban” surface coal-mining altogether through legal channels and robust direct actions.
Unfortunately, the coal industry and other key stakeholders—as aided by complicit lawmakers—thwarted these efforts and instead secured federal legislation to “regulate” rather than to “ban” surface mining: The Surface Mining Control and Reclamation Act of 1977 (SMCRA). Appalachian activists described SMCRA as a “betrayal” and as “short-sighted, unrealistic, and a waste of time.” Even President Carter described SMCRA as “watered down.”
SMCRA also permitted a remarkably destructive form of surface mining termed mountaintop removal mining (MTR), entailing chopping off mountaintops via explosives and heavy machinery to reach coal seams beneath. MTR would come to devastate Central Appalachia from the 1990s up until the present era. MTR has destroyed more than 500 mountains and buried more than 2,000 miles of ecologically crucial headwater streams. The practice also has produced myriad social, economic, and public health harms, which has disproportionately impacted Appalachians along such intersecting lines as gender and class.
Environmental Law’s Flawed Statutes
SMCRA’s failings and those of other key environmental statutes, such as the CWA, help illustrate why environmental law at large is a failed legal regime. Broadly speaking, environmental law has failed because it often serves to organize and to incrementally mitigate—and to not actually halt—key forms of ecological devastation such as Appalachian surface mining.
Specifically, as Environmental Law Professor Mary Wood argues, industry and complicit lawmakers secured “legislative outs” during environmental law’s initial enactment to ensure that industry could continue to pollute in pursuit of maximum profits. A key form of legislative outs are permit-to-pollute legal regimes, where industry can obtain permits from applicable federal and state agencies in order to make legal their environmentally destructive practices.
As Political Science Professor Craig Collins explains, “even our most promising environmental bills were deformed and crippled by toxic loopholes created by politicians seeking to please the powerful polluting industries that lavish them with favors and fund their campaigns.” Professor Wood adds that through “securing permit provisions, industry gained a set of statutes that, in practice, act not so much as damage-preventing but damage-permitting.”
MTR is a classic exemplar of such permit-to-pollute legal regimes. As a prime example, the U.S. Army Corps of Engineers (Corps) has issued MTR permits under the CWA, as MTR operations impact Appalachian waterways. Thus, the mere fact that such federal and state agency permitting schemes even exist for devastating practices like MTR—and that MTR, which has been compared to “volcanic eruptions” in the scientific literature, was not simply banned—is a profound failure of environmental law in and of itself.
Environmental Agency Bias and Federal Court Deference
What is more, numerous other structural flaws inherent to environmental law contribute to and exacerbate such failures. As an additional example important in the MTR context, recall that Congress delegated extensive authority to environmental agencies.
However, environmental agencies—which, unlike Congress, are not directly accountable to the public—typically exhibit pro-industry biases in decision-making. Collins concludes that the “dictates and constraints of the political and economic status quo” ultimately “drive government agencies to put political expedience and corporate profits over environmental protection.”
In the Appalachian MTR context, such pro-industry agency bias has been an infamous feature for decades. In fact, in a long pattern of federal litigation, Appalachian environmental plaintiffs in tandem with public interest environmental law firms brought suit against applicable state and federal agencies such as the Corps, alleging blatant mis- and non-enforcement of environmental law at issue such as the CWA and SMCRA, as directly benefitting the coal industry.
Courts typically defer to agency expertise—which is yet another failure of environmental law—under such doctrines as “Chevron deference.” So, Appalachian environmental litigation across the decades often has been marked by losses, as illustrated by the Fourth Circuit Court of Appeals decision Ohio Valley Environmental Coalition v. Aracoma Coal Co. and the Sixth Circuit Court of Appeals decision Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers. In both MTR decisions, the courts deferred to the Corps’ expertise. As the Fourth Circuit held, “in reviewing agency action, ‘the court is not empowered to substitute its judgment for that of the agency.’”
Reality sometimes breaks through. As a clear-eyed federal district court memorably held in one such MTR decision, Kentuckians for the Commonwealth, Inc. v. Rivenburgh, the actions taken by the Corps involving CWA permitting in that case were “designed simply for the benefit of the mining industry and its employees.” Unsurprisingly, this decision was later overturned by the Fourth Circuit Court of Appeals, which reviewed the Corps’ actions under a more “deferential” standard.
Such are the ultimate outcomes Appalachians have come to expect under environmental law. To be sure, the coal industry has experienced a historic market decline and political and institutional winds have incrementally shifted against the industry in the most recent era. Nevertheless, new MTR permits continue to be issued in Central Appalachia.
Moving Forward: Transformative Ecological Change
Similar to the 1960s and 1970s, Appalachians have continued to combat the coal industry, including MTR, in addition to the regional natural gas industry, petrochemical sector, and broader issues such as climate change. As I discuss in my new book, many such Appalachian activists, academics, and organizations are exploring more transformative approaches. We have lived under environmental law for a half-century: It has failed. Might more radical ecological change be necessary for a truly just and ecologically sustainable future? Can it begin in Appalachia?
Continue the Conversation!
The Rural Reconciliation Project thanks Nick Stump for this thoughtful reflection on environmental law and its impact in Applachia specifically. We welcome similar contributions from a range of rural and non-rural voices here on The Rural Review and have posted submission guidelines here.
