Citizens Advocacy Organizations Claim Mine Modification Approval Was Unconstitutional

Advocates for citizens, the Citizens for Constitutional Integrity and Southwest Advocates, filed a lawsuit on Tuesday in the District of Colorado alleging that the United States and other government agencies and directors should have done more to protect individuals from pollution originating at the King II Mine in southwestern Colorado.  

The parties claimed that the Office of Surface Mining Reclamation and Enforcement (OSMRE) violated the Constitution when they implemented a rule which purportedly did not ensure that the mine would not have an effect on well water, wildlife, and the neighboring La Plata River. Specifically, they accused the defendants of violating equal protection, due process, and separation of powers by using a two-tiered voting threshold when passing the law, under the “unconstitutional Congressional Review Act.”  

The complaint said, “in the striking, dry, high-desert of southwestern Colorado, the Mine takes water from the La Plata River, one of the few local, perennial streams, to control the dust as miners delve deeper into poorly understood geologic formations. The Mine’s owner, GCC Energy, LLC, does not know what happens to fluids that flow out of the Mine, and it does not know how digging the coal will impact underground water flows.”  GCC reportedly does not monitor the groundwater to ensure that it is not becoming polluted, the plaintiffs allege this failure “flow(s) from OSMRE’s failure to require GCC to comply with the Stream Protection Rule.” 

The advocates claimed that the Stream Protection Rule should have required OSMRE and GCC to complete a groundwater analysis, monitor for pollutants, and examine the impact of diverting water from the La Plata River to the mine, but it was not considered.  OSMRE reportedly approved GCC’s modifications without considering the rule, and “will likely approve a second expansion … very soon.” 

Southwest Advocates has reportedly fought expansions of the King II Mine, which it claims have caused increasing environmental impacts. The mine has expanded on two separate occasions since 2017.  

The plaintiffs, represented by Jared S. Pettinato, asked the court to declare the two-tier structure used to pass the rule unconstitutional, declare the Stream Protection Rule as valid, vacate the approval for the mine’s modification, stopping the mining activities it approved, and allow it to be considered again with the Stream Protection Rule.