Judge Henry H. Kennedy, Jr. , sitting in the U.S. District Court for the District of Columbia, today rejected an attempt by the Department of Interior to reverse the Bush Administration’s devastating last-minute weakening of the stream buffer zone rule, a key protection for waterways near mountaintop removal coal mines.

A coalition of organizations including the Sierra Club had challenged the Bush Administration's actions and had praised the Department of Interior for attempting to reverse the rule.

Under the Bush rule, coal mine operators are able to dispose of excess mountaintop spoil in perennial and intermittent streams and within 100 feet of those streams whenever alternative options are deemed "not reasonably possible." Disposal into streambeds is permissible when alternatives are considered "unreasonable," which occurs under the Bush rule whenever the cost of pursuing an alternative "is substantially greater” than normal costs.

In a statement, Sierra Club Environmental Quality Program Director Ed Hopkins said, "Today's federal court decision is unfortunate, and it shows that it will take bold action to truly end mountaintop removal coal mining. We praise the Department of Interior's efforts to address this most destructive form of coal mining by focusing on stream impacts, but only a comprehensive effort by the Obama administration will bring true relief to Appalachian communities."

On April 27, 2009 Secretary of the Interior Ken Salazar announced his determination that the mountaintop coal mining “stream buffer zone rule” issued by the Bush Administration is legally defective. Salazar directed the United States Department of Justice (DOJ) to file a pleading with the U.S. District Court in Washington D.C. requesting that the rule be vacated due to this deficiency and remanded to the Department of the Interior for further action.

"When Secretary of the Interior Salazar first announced his intent to reverse the Bush-era rule, he said that it alone would not be enough to completely end mountaintop removal coal mining,” continued Hopkins. “Restoring the previous stream buffer zone regulation remains one component in the complex effort to end mountaintop removal coal mining. But with the administration currently considering more than 80 permit applications for new mountaintop removal coal mining, it will take policy changes at the Army Corps of Engineers, Department of Interior and Environmental Protection Agency, along with tough enforcement, to end the destruction completely and protect Appalachian communities.”

"Mining companies have already buried close to 2,000 miles of Appalachian streams beneath piles of toxic waste and debris. Serious steps to end mountaintop removal coal mining would support clean energy solutions in Appalachia and create good, green jobs in America."

Judge Kennedy was appointed to the U.S. District Court in September 1997. He graduated from Princeton University in 1970 and received a J.D. from Harvard Law School in 1973. Following graduation, he worked for a short time for the law firm of Reavis, Pogue, Neal and Rose, then served as an Assistant United States Attorney for the District of Columbia from 1973 to 1976. From 1976 to 1979 he served as a United States Magistrate for the United States District Court for the District of Columbia. In December 1979, he was appointed Associate Judge of the Superior Court of the District of Columbia, where he served until his appointment to the federal bench.

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