NOTE: The following is one of a series of case studies produced by the Union of Concerned Scientists' Scientific Integrity Program between 2004 and 2010 to document the abuses highlighted in our 2004 report, Scientific Integrity in Policy Making.
Internal government documents initially obtained under the Freedom of Information Act reveal that senior Bush administration officials at the U.S. Department of the Interior intentionally disregarded extensive scientific studies conducted by five separate federal and state agencies over four years in preparation of an environmental impact statement (EIS) on mountaintop removal mining in Appalachia. The agencies had agreed to conduct the EIS as part of a settlement of an environmental lawsuit by residents of coalfield communities.1
According to the National Environmental Protection Act (NEPA) of 1969, an explicit purpose of an EIS is to list alternative possibilities, with a specific technical assessment of their environmental implications, for practices being reviewed.2 The stated purpose of the mountaintop removal EIS was even more specific; the federal agencies agreed that the EIS would recommend policies and procedures to "minimize, to the maximum extent practicable, the adverse environmental effects to waters of the United States and to fish and wildlife resources from mountaintop [removal] mining operations, and to environmental resources that could be affected by the size and location of fill material in valley fill sites."3
However, government documents and Union of Concerned Scientists interviews confirm that J. Stephen Griles, deputy secretary of the Department of the Interior and a former lobbyist for the National Mining Association,4 instructed agency scientists and staff to change the focus of the EIS. A memo from Griles to the White House Council on Environmental Quality and other federal agencies involved in the EIS states that a new draft EIS should "focus on centralizing and streamlining coal-mining permitting."5
Under Griles’ direction, agencies were directed to drop consideration of any options for more environmentally benign alternatives to current practices despite overwhelming scientific evidence of environmental destruction from the technique.6
During the past decade, the practice of mountaintop removal strip mining has been widely used to extract coal in central Appalachia. In the technique, huge machines known as "draglines"7 remove mountain ridges to expose coal seams. In the process, coal companies dump millions of tons of waste rock and dirt into nearby hollows, burying mountain headwater streams under enormous "valley fills." As part of a 1998 court settlement,8 the federal government agreed to produce an EIS analyzing the effects of this practice and finding ways to limit the environmental damage it causes, especially to streams in the region.9
Scientists working for various federal agencies have documented a wide range of enormously destructive environmental impacts from this mining technique. More than 7 percent of Appalachian forests have been cut down and more than 1,200 miles of streams across the region have been buried or polluted between 1985 and 2001.10 According to the federal government’s scientific analysis, mountaintop removal mining, if it continues unabated, will cause a projected loss of more than 1.4 million acres by the end of the next decade11—an area the size of Delaware—with a severe impact on fish, wildlife, and bird species, not to mention a devastating effect on many neighboring communities.12
While the EIS produced by the Bush administration included some 5,000 pages of analysis documenting this destruction, there are instances where administration officials sought to soften the overwhelmingly negative findings. For example, a U.S. Fish and Wildlife Service (FWS) scientist says the Bush administration team ordered technical language rating the environmental impacts as "significant" or "severe" be stripped away in the editing process.13 In addition, a Bush administration "steering committee" of the interagency EIS process initially removed an economic analysis prepared by an independent contractor that showed that limits on the size of individual valley fills would not have negative economic impacts on the region’s electric costs. The steering committee discredited the analysis for what it called a "fatally flawed" methodology.14 A revised analysis, which took into account the comments and concerns of dozens of coal industry officials, was included in the draft EIS. However, this analysis still found that the economic costs of limiting the size of valley fills would have a negligible effect on the price of coal.15
While administration officials included extensive scientific documentation of the negative consequences of the mining practice in the EIS, they violated a central tenet of an EIS16 by offering no proposed alternatives to mitigate the worst environmental consequences of mountaintop removal mining.
"We were flabbergasted and outraged," says one high-ranking staff scientist at the FWS who had worked extensively on the preparation of the technical analysis for the EIS.17 This official, whose name is withheld on request, explains that, in response to Griles’ directive, the Bush administration steering committee called a meeting in October 2001 at which agency scientists and administrators were told that the draft EIS "was going to be taken in a different direction."18
Cindy Tibbot, an FWS biologist involved in the EIS process, was one of many agency scientists who expressed outrage about Griles’ directive, stating in an internal memo: "It’s hard to stay quiet about this when I really believe we’re doing the public and the heart of the Clean Water Act a great disservice."19 As Tibbot put it, the only alternatives offered in Griles’ proposed EIS would be "alternative locations to house the rubber stamp that issues the [mining] permits."20
Tibbot was not alone. An internal memo from FWS staff reviewing the draft EIS prior to its release assessed the situation this way:
The EIS technical studies carried out by the agencies—at considerable taxpayer expense—have documented adverse impacts to aquatic and terrestrial ecosystems, yet the proposed alternatives presented offer no substantive means of addressing these impacts. The alternatives and actions, as currently written, belie four years of work and the accumulated evidence of environmental harms, and would substitute permit process tinkering for meaningful and measurable change. Publication of a draft EIS with this approach, especially when the public has seen earlier drafts, will further damage the credibility of the agencies involved.21
Recently obtained documents reveal that staff at other agencies involved in the EIS process were equally concerned with the administration’s approach to the EIS. Ray George, an Environmental Protection Agency (EPA) official from West Virginia’s Region 3, expressed concern that his agency’s "science findings are not reflected in [the draft EIS’s] conclusions/recommendations."22 Another EPA official, John Forren, underscored the severity of the problem. "It’s one thing," Forren wrote, "to include such alternatives in the [draft] EIS and not choose one as a preferred alternative or not choose one as the selected action in the Record of Decision." As Forren continued, however, it is quite another thing to offer no meaningful alternatives at all. Such a tactic, he warned, would "give the appearance we’re obscuring and de-emphasizing the [alternatives] that address directly environmental impacts," leaving the entire EIS process open to legal challenge and public outcry.23
"In this case, the administration eliminated all environmental protective alternatives from consideration," says Jim Hecker, environmental enforcement director at Trial Lawyers for Public Justice, who filed the Freedom of Information Act request for the internal documents in this case. As Hecker puts it, "The simple fact is, that is scientifically and intellectually dishonest."24
The lack of scientific integrity in the preparation of the mountaintop removal mining EIS played out against the backdrop of an administration with close financial ties to the energy industry as well as an apparent conflict of interest presented by Griles’ close involvement in the EIS process. Aware of Griles’ longstanding association with the mining industry, the Senate requested that he sign a "statement of disqualification" on August 1, 2001, in which he made a commitment to avoid issues affecting his former clients. Documents obtained under the Freedom of Information Act show that Griles met no fewer than 12 times with top Bush administration officials and coal industry representatives on the EIS and mountaintop removal mining matters between September and December 2001, precisely the time the team issued its order to change direction on the EIS process.25
During the EIS official comment period, representatives from 50 environmental groups across the country wrote a letter charging that the draft EIS fails to comply with the NEPA, stating: "We find the draft EIS’ failure to provide an alternative proposal that would provide better regulation of mountaintop removal mining to protect the environment unacceptable and inappropriate."26 Former Maryland State Senator Gerald Winegrad, vice president of the American Bird Conservancy and co-author of the letter, contends the political process cannot function without an honest scientific assessment of the problem. "But in this case," he says, "the EIS process has been usurped and its scientific underpinnings destroyed."27
Note: This page is an excerpt from the July 2004 update to the February 2004 UCS report Scientific Integrity in Policymaking and subsequent updates.
1. Documents relating to this lawsuit were released through a series of Freedom of Information Act requests by the nonprofit Trial Lawyers for Public Justice. Available online at http://www.tlpj.org.
2. The National Environmental Protection Act of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982). Available at http://ceq.eh.doe.gov/nepa/regs/nepa/nepaeqia.htm.
3. Environmental Protection Agency (EPA) et al. 1999. “Intent To Prepare an Environmental Impact Statement To Consider Policies, Guidance, and Processes to Minimize the Environmental Impacts of Mountaintop Mining and Valley Fills in the Appalachian Coalfields.” Federal Register 64(24):5830. February 9.
4. James Stephen Griles’ biographical information is available at http://www.doi.gov/bio/griles.html.
5. Griles, J.S. 2001. Memo to James L. Connaughton, Chairman Council on Environmental Quality, Marcus Peacock, Associate Director Office of Management and Budget, et al. FOIA request by Trial Lawyers for Public Justice. October 5. Online at http://www.tlpj.org/briefs/mtm_vf_deis_comments.pdf.
6. See FOIA documents available online at http://www.tlpj.org. See also Shogren, E. 2004. “Federal Coal-Mining Policy Comes Under Fire: Fish and Wildlife Service says the administration ignored its protection plan,” Los Angeles Times. January 7. See also Ward, K. 2003. “Mountaintop removal damage proved: Bush proposes no concrete limits on new mining permits,” Charleston Gazette. May 30. Available online at http://www.wvgazette.com/static/series/mining/.
7. Draglines are $100 million machines that weigh about eight million pounds and are the size of a city block. The dragline’s bucket can take a bite of earth equal to the size of about 26 Ford Escorts in one scoop. See Loeb, P. 1997. “Shear Madness,” U.S. News and World Report, August 11.
8. See U.S. District Court, West Virginia. 1998. Bragg v. Robertson. Settlement agreement. Case history available online at http://www.tlpj.org/key_current_cases.htm.
10. EPA. 2003. Draft Programmatic Environmental Impact Statement (EIS) on Mountaintop Mining. May. Available online at http://www.epa.gov/region3/mtntop/index.htm. See also Ward, K. 2003. “Mountaintop removal damage proved: Bush proposes no concrete limits on new mining permits,” Charleston Gazette. May 30.
11. EPA. 2003. Draft Programmatic Environmental Impact Statement (EIS) on Mountaintop Mining. May. Available online at http://www.epa.gov/region3/mtntop/index.htm.
13. Author interview with U.S. Fish and Wildlife Service scientist, name withheld on request, May 2004.
15. U.S. Environmental Protection Agency. 2003. Draft Programmatic Environmental Impact Statement (EIS) on Mountaintop Mining. May. Available online at http://www.epa.gov/region03/mtntop/eis2003.htm
16. The analysis of alternatives is “the heart of the environmental impact statement”; this analysis, based in large part upon the environmental consequences section of the EIS, should “[d]evote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.” See NEPA implementing regulations at 40 CFR 1502.14, available online at http://ceq.eh.doe.gov/nepa/regs/ceq/1502.htm.
17. Author interview with U.S. Fish and Wildlife Service scientist, name withheld on request, May 2004.
19. Tibbot, C., U.S. Fish and Wildlife Service. 2002. Email correspondence circulated internally. October 30. Part of FOIA request documents available online at http://www.tlpj.org.
21. Densmore, D., Supervisor, Pennsylvania Field Office, U.S. Fish and Wildlife Service. 2002. “FWS Comments on 9/20/02 Draft of Chapter IV (Alternatives).” Comments circulated internally. September 30. Part of FOIA request documents available online at http://www.tlpj.org
22. George, R., EPA Region 3. 2002. Email correspondence. December 30. Available online at http://www.tlpj.org.
23. Forren, J., EPA Region 3. Memo. October 4. 2002. Available online at http://www.tlpj.org.
24. Author interview with Jim Hecker, May 2004.
25. See list prepared by the Ohio Valley Environmental Coalition, available online at http://www.ohvec.org/action_alerts/2002/09_28/GrilesMTRMeetings.pdf.
26. Winegrad, G.W., Vice President for Policy, American Bird Conservancy, and 50 representatives from environmental organizations. 2004. Letters to President Bush and John Forren, EPA. January 2. Available online at http://www.ohvec.org/issues/mountaintop_removal/articles/EIS_am_bird.pdf. 27. Author interview with Gerald Winegrad, March 2004.