Federal officials defend the current policy. "In my experience, the corps and [the Office of Surface Mining] both try to be very responsive to threatened and endangered species needs, and I think they've gotten better," Hughes said. "We stay as well informed as we possibly can, and we do try to be very conservative" when dealing with species needs.
The coal industry agrees. "In my personal opinion, the coal industry is regulated more than any [other] industry that I'm familiar with," said Jeff Speaks, lobbyist for the Kentucky-based trade association Coal Operators & Associates. Speaks added that industry groups have every incentive to be honest in their self-reporting because the delays incurred by the rejection of endangered species surveys or any other part of their applications would cost them millions.
Environmental groups disagree.
The Center for Biological Diversity's Curry, who grew up between two coal mines in Kentucky's Knott County before moving west to work at the Center's Portland, Ore., office, said the special standard greenlights environmental destruction in Appalachia that would be unthinkable elsewhere. "I've read longer biological opinions for road repairs on the Mount Hood National Forest than for the [1996 biological opinion] that proclaims to address all species impacts from all coal mining activities," she said. "In Oregon, you would never get permission to blow up the top third of a mountain -- it just wouldn't happen."
Deborah Murray, lead attorney for the Southern Environmental Law Center, said the document relies on faulty logic to shield coal mining from the Endangered Species Act. Without Fish and Wildlife Service biologists formally reviewing mines, there is no way to ensure that operators are complying with the Surface Mining Law's species provisions, and therefore no way to ensure they are complying with the Endangered Species Act at all, Murray said.
Informal consultations during the planning stages are a wholly inadequate replacement for formal reviews, Murray said. The formal reviews by federal biologists require public comment periods and months of research before reaching a decision that can be contested in court. "Informal consultations just wouldn't have any clout," Murray said. "The permitting agency could ignore the comments. They could do the same with a ... formal consultation, but they do so at their peril."
SELC's argument appears to be gaining some traction at Interior.
In 2008, the group sued on behalf of the National Parks Conservation Association over the lack of Endangered Species Act consultations while changing the stream buffer zone rule to relax limits on what mountaintop miners could dump into waterways. Interior cited the 1996 opinion in forgoing the consultations, again arguing that existing provisions provide adequate protection. But in April, Interior Secretary Ken Salazar said that the failure to consider effects to species "did not pass the smell test," retracting the stream buffer zone rule changes while his department takes a second look.
Groups differ on strategy
Salazar's "smell test" comments were a small victory for environmental groups but far from the outright ban on mountaintop removal policy they are hoping the Obama administration will eventually deliver. In discussions following the announcement on the next step in battling mountaintop removal, a rift emerged among environmental groups, according to people close to the talks.
SELC announced plans to petition Interior to drop the 1996 biological opinion entirely, requiring Interior to bring in Fish and Wildlife Service biologists before issuing permits to individual mines, Murray said. A similar petition was rejected last year by the Bush administration, but Murray said the new administration may be more receptive.