Mountain Top Removal: Scourge of the People

By Ken Hechler 2007
Published in Coal Country (2009) titled "How Congress Enabled Mountaintaintop Removal"

Although the destructive practice of blasting off the tops of mountains to harvest the coal seams underneath was started less than 50 years ago, it’s more modern development with more powerful explosives plus the failure of Federal and State regulation has failed to protect those human beings unfortunate enough to live in the valleys. The last resort judicial system has occasionally slowed this destructive process, but lower court decisions have all too frequently been overruled on appeal.

The godfather of mountain top removal was called “strip mining,” although the coal industry insisted on labeling this process “surface mining and reclamation.” To me, co-called “reclamation” is akin to putting lipstick on a corpse. Even in the more extreme examples of mountain top removal, it is always possible to spend excessive amounts of money on a small acreage of “showcase reclamation” which will win prizes and is handy to show naďve visitors, but would be economically unfeasible if extended throughout.

It is a sad commentary on the American system of justice to which we pledge allegiance that the well-heeled coal industry has succeeded in buying off legislatures and executive officers, whose appointees dictate the membership of supposedly impartial environmental enforcement agencies. In such a political atmosphere, those human beings adversely affected are powerless.

As a fledgling member of the U.S. House of Representatives, my concern about the damage which strip mining wrought on the people was first sparked by Kentuckian Harry Caudill’s landmark volume titled “Night Comes to the Cumberlands” first published in 1962. President Kennedy, visibly shaken by his first-hand observation in the 1960 West Virginia presidential primary of the appalling human examples of extreme poverty in West Virginia in coal mining areas, directed all those personnel working on aid to Appalachia to read Caudill’s book. Stewart L. Udall, the able Secretary of the Interior under both Presidents Kennedy and Johnson, not only wrote a ringing endorsement in his Foreword to Caudill’s book, but also published several revealing studies of the adverse effects of strip mining. President Johnson’s War on Poverty and the VISTA workers helped to spur the first organized opposition to strip mining in the 1960’s

I was further impressed by the excellent exposes of the evil effects of strip mining by writers like Ward Sinclair of the Louisville Courier Journal. A personal letter from the head of the Audubon Society in Louisville brought the problem home graphically. She related having traveled in Europe from Paris eastward to Berlin and Moscow and was pleased to report that the scenes of the war destruction in World War II had been entirely cleaned up and were now lined with flowers. Then when she returned to this country, the devastation caused by strip mining made it look like the Appalachian area had been the site of the worst bombing of World War II!

During the 1960’s I developed a popular musical slide show which depicted all the evils of strip mining and encouraged more support for abolition. The music told a great deal of the story. For example, during the showing of attempts at reclamation, Lynn Anderson sang: “I Beg Your Pardon, I didn’t Promise You a Rose Garden!” In the scariest scenes of monster draglines, Wagner’s “Ride of the Valkyries” set the mood. And as the strip mining continued, the raunchy serenade of “The Stripper” reminded viewers of an entirely different form of stripping.

The popularity of the slide show was also enhanced through subtle changes in the music. For examples, when I addressed the Yale College of Law, the show started with the “Whiffenpoof Song” and in Wyoming residents were treated to an old favorite, “Just a Home in Wyoming .” And in North Carolina , it was natural to feature “Carolina Moon.”

In addition to the neighboring states of Kentucky , Ohio , Pennsylvania , Virginia and Maryland , I took my slide show on the road to Montana , North Dakota , Illinois and Wyoming . A North Dakota newspaper compared me with William Lloyd Garrison, who concluded: “I will be heard.”

Coming on the heels of the successful civil right protests, the atmosphere was conducive to expanded protests like the abolition movement. The role of music proved a tremendous boost to the abolitionists. The first group of songs focused on the stripping companies and the coal-hauling railroad. One song was a parody of the gospel hymn, “Swing Low, Sweet Chariot”:

I

Strip away, big D-9 Dozer
Comin’ for to bury my home
I’m getting’ madder as you’re getting’ closer
Comin’ for to bury my home
Well I looked up a spoil bank and what did I see?
Comin’ for to bury my home
The Island Creek Company pushin’ down my trees
Comin’ for to bury my home

II

Daddy, won’t you take me back to Muhlenberg County
Down by the Green River where Paradise lay
Well, I’m sorry, my son, you’re too late in askin’
Mr. Peabody’s coal train done hauled it away

III
C. & O. coal trains give me the chills
Robbin’ the coal from the West Virginia hills
Takin’ the coal so the world can run
And the bosses can have their fun!

Billy Edd Wheeler wrote a meaningful song to demonstrate the futility of reclamation. Wheeler’s song was entitled “They Can’t Put it Back”:

Down in the valley ‘bout a mile from me
Where the crows no longer fly,
There’s a great big earth-movin’ monster machine
Stands ten stories high
The ground he can eat, it’s a sight
He can rip out a hundred tons at a bit
He can eat up the grass, it’s a fact
But he can’t put it back.

Folk singers like Peter, Paul and Mary, Bob Dylan and Pete Seeger joined the protest movement with songs which may not have focused directly on strip mining, but voiced the mood of ferment of the times. A Bob Dylan song effectively voiced that mood and singled out the fact that Congress must wake up to realize that the public demanded change:

Come Senators, Congressmen, please heed the call
Don’t stand in the doorway, don’t block up the hall
He who gets hurt is he who has stalled
There’s a storm outside that’s ragin’
It rattles your windows and shakes your walls
For the times they are a –changin’!

The student protests against the war in Vietnam sparked a series of teach-ins which caught the attention of many Congressmen and religious leaders throughout the nation. It was a natural progression for these groups to turn to agitating against polluters of the land, the water and the air. The rising interest in protecting the environment led to the enactment of the Clean Water Act, the Clean Art Act and the establishment of Earth Day on April 22, 1970, thanks to the leadership of Wisconsin U.S. Senator Gaylord Nelson (who later headed the Wilderness Society after his retirement from the Senate.) The publication of Rachel Carson’s landmark book Silent Spring in 1962 helped to focus even more attention on the environment. All of these developments assisted me in lining up congressional support for the abolition of the destructive practice of strip mining. By the early 1970s, I had persuaded 90 House sponsors to indicate their public support for my bill to outlaw and phase out strip mining.

I received strong support from environmental groups like Friends of the Earth, the Sierra Club and the Environmental Policy Center , as well as citizen groups and activists throughout the nation. The bill called for a 6-month phase-out of strip mining, and with my full support, Congressman John Seiberling of Ohio , a member of the House Interior and Insular Affairs Committee, amended my bill to include cash payments and retraining funds for those employed in strip mining when their jobs were eliminated. An important feature of my bill was to place the administration of the bill in the Environmental Protection Agency rather than the Bureau of Mines, since it was designed to be enforced by an agency committed to environmental protection rather than production.

Back in West Virginia , newly-elected State Senator Si Galperin, who had campaigned in 1970 in Kanawha County on an abolitionist platform, introduced an abolition bill in the West Virginia Legislature. In the U.S. Senate, Wisconsin Senator Gaylord Nelson and South Dakota Senator George McGovern introduced comparable abolition bills. Many of the VISTA volunteers who had banded together to abolish stripping probably persuaded Secretary of State John D. Rockefeller, who had arrived in West Virginia as a war on poverty volunteer, to come out for West Virginia abolition in 1971 and announce it would be a feature of his 1972 campaign for the governorship. In 1971, Rockefeller financed an organization called “Citizens for the Abolition of Strip Mining” which pulled together the efforts of 19 abolition movements in counties throughout the state. The director of CASM was Presbyterian Minister Richard Cartwright Austin, whose home was located in the Boone County town of Orgas within sight of a big strip mine. When the funding for CASM dried up, I hired Austin on my Congressional staff.

Two other West Virginians were instrumental in lining up support for abolition, State Senator Paul Kaufman and Norman Williams, who had been fired as Deputy Director of the state Department of Natural Resources. Kaufman provided legal assistance through the Appalachian Research and Defense Fund, which the war on poverty financed, and Williams was fired because he publicly criticized DNR for its failure to protect the land and the people against destructive strip mining. When Williams was fired, I hired him to bolster my Congressional staff on the abolition issue.

I scheduled a special briefing for Congressmen and their staff on April 22, 1971, at which were present Secretary of State Rockefeller, Representative John Seiberling and Case Western university professor Theodore Voneida, West Virginia Delegate Ivan White of Boone County and other abolition advocates. I was pleased that Rockefeller’s father-in-law, Illinois Senator Charles Percy stayed for the entire program.

All the co-sponsors of my abolition bill, plus abolition advocates throughout the nation and every environmental organization joined me in a drumfire of demands that Congress hold hearings on the issue. At the same time, the coal industry spread the word that they would agree to a mild form of regulation to quiet the public uproar for abolition. The House Committee on Interior and Insular Affairs authorized their Subcommittee on Mines and Mining to open hearings in September 1971. The first witnesses were supporters of regulation, but I was finally schedule to testify.

I had prepared my testimony carefully to anticipate challenges, but to back up my case I received the permission of the committee staff to bring in three experts to sit with me at the witness table: Arnold Miller (later president of the United Mine Workers) and an experienced deep miner who shared my abolition views at that time, West Virginia University Economics Professor William Miernyk, and West Virginia University wildlife management Professor Robert Smith. On the day of my appearance, the Subcommittee Chairman, Ed Edmondson of Oklahoma , ruled that he would not allow these three to speak (although I had received advance approval from the staff) because he had already turned down other requests by witnesses.

When I started my testimony, I was surprised to observe that the Chairman of the full committee, Rep. Wayne Aspinall, who never before had attended subcommittee hearings, was present on the dais for the full extent of my testimony. Knowing Aspinall’s consistent record of support of the coal industry, and the dour and disapproving look on his face, I knew I was in for a hard time.

For over three hours, I was subjected to the most hostile and vindictive guest ions and procedural rulings I had eve experience in the nearly 14 years of my service as a Congressman. Most of the three hours were taken up by humiliating questions as virtually every committee member tried to get me to change my support of abolition. Chairman Aspinall entered the fray early when I asked unanimous consent to put some statistics into the record and Aspinall rasped: “Put it into the committee files” (which was a way to Deep Six it never to be seen or discovered.) When I started to talk about the adverse effects of strip mining in the Black Mesa region of the West, Aspinall cut in and shot back: “Have you ever visited the Black Mesa?” When I answered in the negative, he ruled: “Well, then, don’t presume to talk about it.” “I resisted the temptation to respond, “Then you have no right to criticize my support of abolition because you have never visited the adverse effects of strip mining in West Virginia .”

Subcommittee Chairman Edmondson was a little more polished in his opposition, hammering away at these themes: How was the nation to obtain enough coal to meet the so-called “energy crisis,” “Why would I advocate more deep mining because deep mining was more dangerous, “What about all the jobs of strip miners thrown on the unemployment lines by my bill, and “Wasn’t strip mining more efficient and more economic in getting more of the coal than through deep mining?” During the intensive grilling to which I was subjected by virtually every committee member on both sides of the aisle I felt like I was advocating an unholy position which must be treated by exorcism.

The central reason why I felt then and still feel today that regulation will not work is because of the tremendous power which the coal industry possesses to buy off public officials with lavish campaign contributions and to weaken any efforts at regulation through poor enforcement of any business-friendly regulation on the statute books.

It came as no surprise when in 1972, the Interior Committee voted to kill my abolition bill. The scene then shifted to the House floor during the 1970s as the Surface mining Control and Reclamation Act was being shaped. Although I tried to mobilize my 90 abolition co-sponsors for a vote on the House floor, the number who voted for abolition by 1974 had dwindled to 66, in the face of the Arab oil embargo.

My opposition to regulation stiffened in the face of continued efforts by Chairman Udall and the committee in charge of shaping the bill to accept compromises designed to create a consensus. The weakened amendments were put forward by Congressmen who were responding to coal industry concerns. I tried unsuccessfully to sponsor amendments such as prohibition of strip miming on slopes steeper than 20 degrees, but my amendments were customarily rejected because there just happened to be more Congressmen subservient to the coal industry than there were genuine environmentalists. One of the favorite ploys of a burly Republican from Arizona named Sam Steiger was to address me as “professor” in his remarks, with the implication that I was just an ivory tower impractical person who did not understand the realities of the situation. Congressman Steiger would then add exaggerations like “Professor Hechler really believes in the end to all mining.”

The blackest day in the consideration of SMCRA occurred on July 22, 1974. On that date Representative Teno Roncalio of Wyoming , the state which displaced West Virginias as the largest coal-producing state in the union, introduced the following amendment to SMCRA: authorizing “mining operations which create a plateau with no highwalls remaining.” The language sounded innocent enough to fool many Members, until my fellow West Virginia Congressman from Charleston , Rep. John M. Slack, a strong coal industry supporter offered this explanation: “This amendment would permit the mountaintop and valley fill type of surface miming presently used at several model mines in West Virginia creating useful plateaus without highwalls. Mountaintop miming produces flat land needed in many hilly regions with minimum damage to the environment. This is a form of mining which should increase, not decline on the basis of its proven results. I urge its adoption.”

Of course, many Members did not realize that what Congressman Slack characterized as “model mines” were a far cry from that characterization and to refer to “minimum damage to the environment” was a real distortion of the adverse effects of mountaintop removal on the people, wildlife and the land itself. So I immediately jumped into the debate by asking my West Virginia colleague this question:

” I should like to ask the gentleman from West Virginia whether this, indeed, does not weaken, negate and gut the permanent standards on steep slopes insofar as mountaintop removal is concerned and thereby do great damage to a State like West Virginia?”

As expected, Congressman Slack gave a quick, four-word denial: “Not in my judgment.”

Committee Chairman Udall immediately announced his acceptance of the Roncalio amendment until Subcommittee Chair Rep. Patsy Mink of Hawaii pointed out that the amendment had been cleverly placed in a section of the bill which exempted mountaintop removal from any of the other performance standards in the bill. She successfully persuaded Rep. Udall to offer a tightening amendment to authorize mountaintop removal but make it subject to the other performance standards in the bill. Chairman Udall recognized her concern and pushed through a further amendment to clarify that the other standards in the bill applied.

Despite this effort to tighten the application of the Roncalio amendment, I was so shocked at its intent that I delivered the following impassioned argument –

“Mountaintop removal is the most devastating form of mining on steep slopes. Once we scalp off a mountain and the spoil runs down the mountainside and the acid runs into the water supply, there is no way to check it. This is not only esthetically bad as anyone can tell who flies over the State of West Virginia or any place where the mountaintops are scraped off, but also it is devastating to those people who live below the mountain. Some of the worst effects of strip mining in Kentucky , West Virginia , and other mountainous areas result from mountaintop removal. McDowell County in WV, which has mined more coal than any other county in the Nation, is getting ready right now to strip mine off four or five mountaintops. They are displacing families and moving them out of those areas because everybody down slope from where there is mountaintop mining is threatened. I certainly hope that all the compromises that have been accepted by the committee, offered by industry in the committee that now we do not compromise what little is left of this bill by amendments such as this.

Congressional Record ­ House July 22, 1974 p. 24469

Despite my argument, the Roncalio amendment passed, authorizing mountaintop removal.

While I was serving in Congress, President Ford vetoed two bills in 1974 and 1975 which Congress had passed, both of which authorized mountaintop removal. Congress came the closest in 1975 to over-riding Ford’s second veto. Because I felt so strongly against mountaintop removal, I defied the urgent pleas of the Sierra Club, and Washington-based environmental lobbyists led by Louise Dunlap that I swallow my pride and vote to over-ride the veto. I watched the recording of the vote very carefully and it boiled down to a failure of the efforts to over-ride by 3 votes, so I was convinced that changing my vote would not have changed the outcome. I urged all of my loyal friends in Congress who had supported abolition to go ahead and vote to over-ride, but that my single vote was a protest against the compromised attempts at regulation which I predicted would not work in an atmosphere where the coal industry was determined to weaken the enforcement. I vividly recall that Georgia Congressman Andrew Young, the most outspoken of my abolition supporters, pleaded with me to change my mind. Being an ordained minister, he invoked a biblical allusion when he emotionally said to me: “You led us to the mountain-top, but now you are deserting us.” So I let my vote stand as I was sure that regulation would never work.

After I left Congress at the end of 1976, the new Congress in 1977 sent to newly-elected president Jimmy Carter still another regulatory bill. As an early activist on the subject I was invited to the Rose Garden in August 1977 for the signing of the bill. I told President Carter to his face: “This bill will never work unless it is very rigorously enforced, and enforced in such a way as to overcome the pressures of the coal industry.” President Carter listened very carefully to what I said and responded: “I have a very good Secretary of the Interior, Cecil Andrus and I will tell him of your concerns.”

Despite President Carter’s optimism, the 1977 Act (SMCRA) has failed to protect the land and the people against the ravages of mountaintop removal. For the first year or so, the best and the brightest staff members of the Federal Office of Surface Mining won some temporary victories, but gradually the pressure of the coal industry resulted in the weakening of enforcement. With these developments, especially at the state level, the inspectors and dedicated staff members quietly became disillusioned and many of them resigned. President Reagan’s Secretary of the Interior, James Watt, abruptly removed environmentalists from the leadership and staff of the Office of Surface Mining, leading to more firings and resignations. In West Virginia , the toothless Department of Environmental Protection never lived up to its title, inasmuch as every governor proclaims himself a “friend of coal.”

Absent any effort by either Federal or State sources to protect the land and the people, the news media has kept the people’s hopes alive through a series of news and electronic exposes. On August 11, 1997, U.S. News carried a landmark article by Penny Loeb entitled “Shear Madness” accompanied by color photographs. Network television weighed in with a number of programs on “Nightline,” “Sixty Minutes,” with Mike Wallace, CNN plus a host of foreign TV programs and progressive American reporters. There was full-time support by organizations like the Ohio Valley Environmental Coalition, Coal River Mountain Watch, and the West Virginia Citizen Action Group. Larry Gibson has educated students from scores of colleges and universities, as well as alerting news media who travel from other states to his first-hand, on-the-spot display of what an ongoing mountaintop removal operation looks like on Kayford Mountain , West Virginia . Flyovers are also provided by South Wings.

Why haven’t the Clean Water Act and the Clean Art Act helped to outlaw some of the outrageous practices of mountaintop removal? Attorney Joe Lovett has established an effective organization, the Appalachian Center for the Economy and the Environment. His victory occurred in 2002 in the very first case he handled in a case before Circuit Judge Charles Haden. Judge Haden, a conservative Republican, delivered a startling ruling on May 8, 2002 declaring in favor of southern West Virginia plaintiffs that their rights had been violated and mountaintop removal clearly violated provisions of the Federal Clean Water Act. West Virginia U.S. Senator Robert C. Byrd denounced Haden’s decision and attempted unsuccessfully to over-rule it through Congressional legislation. But the temporary victory for the land and the people was short-lived because on January 29, 2003, the Fourth Circuit Court of Appeals overturned Haden’s decision. Lovett’s organization has won other victories through environmental circuit judges like former House Speaker “Chuck” Chambers. But the court victories provide no permanent solution. Charleston Gazette writer Ken Ward has helped publicize the false claims of the coal industry.

To offset some of these positive developments, the Bush administration has repeatedly thrown monkey wrenches into the mix, the most recent of which surfaced at the end of August 2007. The Office of Surface Mining has proposed new regulations to insulate mountaintop removal from legal challenges under the Clean Water Act. The central aim of the new regulation is to make it no longer a violation of the Clean Water Act to dump material in such a way as to block streams. This effort to circumvent the Clean Water Act follows the 2002 rewrite of clean water regulations by the Environmental Protection Agency to add “mine waste” to the list of materials that can be used to fill in streams for development. This follows the EPA’s 2004 ruling that the legal requirement prohibiting any mining activity within a buffer zone of 300 feet should be followed only “to the extent practicable.”

I have updated some of my musical parodies to apply to a currently popular song, “Country Roads” with the late John Denver stars with the line ALMOST HEAVEN WEST VIRGINIA. My parody starts with the line ALMOST LEVEL, WEST VIRGINIA . The entire song’s new words are as follows:

ALMOST LEVEL, WEST VIRGINIA
(New words by Ken Hechler)

I

ALMOST LEVEL, WEST VIRGNIA
SCALPED OFF MOUNTAINS
DUMPED INTO OUR RIVERS
DARK AND DUSTRY: BLASTING TOWARD THE SKY
MURDERING OUR MOUNTAINS
TEAR DROPS IN OUR EYES

Chorus

DIGGING COAL
BLASTING ROCKS
IN THE PLACE I BELONG
WEST VIRGINIA , MOUNTAIN MOMMA
PLEASE HELP SAVE
WHAT IS LEFT

II

I HEAR HER CRIES AS THEY’RE SCALPING HER
SHE CALLS ME; I FEAR THEY’RE GETTING NEARER
TO MY HOME THAT’S CLOSE BY
THE GOVERNMENT WON’T HELP
I GET A FELLIN’ THAT THEY SHOULD HAVE HELPED US
YESTERDAY, YESERDAY, HEY! HEY!

III
ALMOST LEVEL, WEST VIRGINIA
SCALPED OFF MOUNTAINS
DUMPED INTO OUR RIVERS
DARK AND DUSTY, BLASTING TOWARD THE SKY
MURDERING OUR MOUNTAINS
TEARDROPS IN OUR EYES
MOUNTAIN STATE, THIS IS HOME
WE MUST FIGHT FOR OUR HOMES
WEST VIRGINIA , ALMOST LEVEL
WE MUST FIGHT FOR OUR HOMES

 

 

 


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