By: Aaron Ambrose
Between July 25th through July 30th, 2022, several counties in eastern Kentucky experienced devastating rainfall, leading to widespread catastrophic flooding.[1] During this period, it is estimated that upwards of14-16” of rain fell on certain areas.[2] In these Appalachian mountain communities, this heavy rain ran down hillsides, causing mudslides and filling rural valleys with flood water.[3] Further, the excessive rainfall led to significant rises and flooding in many rivers in the area.[4] For example, the stretch of the Kentucky River in Jackson, one of the counties impacted, reached its highest mark at a staggering 43.2 feet.[5] Given the terrain of the area, with it containing steep hillsides and narrow valleys, the excess water had nowhere to go other than through the towns, devastating the small communities and anything else in its path.[6]
After such disastrous flooding, it leads one to question how an event such as this could happen. One potential answer, and likely the main contributor, is climate change.[7] Another likely contributor, is the negligence of coal companies.[8] Being in the heart of Appalachia, Eastern Kentucky has a long history with coal, with the dying industry being a staple of the region’s economy for centuries.[9] Despite this, coal mining, and particularly the methods used for extraction, can prove to be devastating to the environment.[10] To minimize this impact, in 1977 Congress passed the Surface Mining Control and Reclamation Act (“SMCRA”), requiring coal companies to restore the land it disturbed upon mining in that area.[11] Nevertheless, despite this command, compacted dirt, destroyed mountaintops and deforestation in eastern Kentucky have often been left ignored by the coal companies that mined in these areas.[12] Kentucky as a whole is littered with abandoned coal mines, holding over 2,800 abandoned mines, with the majority being located in eastern Kentucky.[13]
With coal companies failure to follow the directive that Congress set by the SMCRA along with an apparent lack of enforcement, eastern Kentucky and its residents are left with an area completely reshaped by coal mining.[14] Hillsides that would have been covered in large stabilizing vegetation are now bare or covered by minor vegetation in unenthusiastic attempts at reclamation.[15] The whole structure of surrounding hills have been transformed along with natural routes of drainage now being filled with rubble or choked by silt.[16] These changes have lead to drainage being altered in the area, with water going into different areas, flowing in narrower spaces, moving more rapidly down steeper slopes, and reaching surrounding rivers at a faster rate.[17] This drastic change in the landscape of eastern Kentucky, left unrestored, certainly worsened the floods.[18]
In order to both restore the area and to reduce the likelihood of a flooding of this magnitude from ever happening again, it is crucial that coal companies begin restoring abandoned coal mines. One way to achieve this is to require coal companies to pay reclamation costs upfront.[19] Under the current system in Kentucky, coal companies are allowed to put up bonds for potential costs, which for the most part are inadequate and have been the subject of extensive litigation.[20] Unfortunately, due to this, nothing gets done, and eastern Kentucky and its residents are left to suffer the consequences. Therefore, by requiring coal companies to pay money up front, coal companies would be forced to begin extensive reclamation. Another potential solution, which has been explored by some, is to sue the coal companies themselves for their negligence.[21] Nevertheless, while this may result in some residents receiving restitution, any litigation is likely to drag out for numerous years and will fail to address the real issues. Finally, leaders could call on the Environmental Protection Agency (“EPA”) to pass regulations requiring coal companies to fulfill their obligations under the act.[22]
Unfortunately, as one expert put it, “because [mining] happens in backwoods Appalachia, nobody really thinks about it… They’re just people in D.C. who are grateful to be able to turn on their light and have inexpensive electricity to charge their cars”.[23] Due to this harsh reality, the people of eastern Kentucky are left to fend for themselves, hoping that the next disaster does not come knocking on their door.
[1] Historic July 26th-July 30th, 2022 Eastern Kentucky Flooding, Nat’l Weather Serv.., https://www.weather.gov/jkl/July2022Flooding (last visited Sep. 12, 2022) [https://perma.cc/8VSB-CCBJ].
[2] Julia Jacobo & Melissa Griffin, Scientists explain how the deadly flooding in Kentucky got so bad: ‘It was bound to be catastrophic’, ABC NEWS (Aug. 3, 2022, 6:03 AM) https://abcnews.go.com/US/scientists-explain-deadly-flooding-kentucky-bad-bound-catastrophic/story?id=87832020 [https://perma.cc/7U4W-KXMM].
[3] Extreme Rainfall Leads to Midwest Flooding, earth observatory https://earthobservatory.nasa.gov/images/150156/extreme-rainfall-leads-to-midwest-flooding (last visited Sep. 14, 2022) [https://perma.cc/42LP-YW69].
[4] Thomas Birmingham et al., Friday updates: 6 children among those killed in Kentucky flooding; many people still missing, courier j. (July 30, 2022, 10:48 AM) https://www.courier-journal.com/story/news/2022/07/29/flooding-in-eastern-kentucky-friday-live-updates/65386163007/ [https://perma.cc/VFY7-78QN].
[5] Id.
[6] Mark Sumner, Floods in eastern Kentucky were a man-made disaster, and we know exactly who is to blame, FORWARD KY. (Aug. 17, 2022) https://forwardky.com/floods-in-eastern-kentucky-were-a-man-made-disaster-and-we-know-exactly-who-is-to-blame/ [https://perma.cc/6QVN-8R6U].
[7] Connor Giffin, ‘Warmer and wetter’: US’ changing climate helps fuel record Kentucky flooding, experts say, courier j. (July 31, 2022, 4:58 PM) https://www.courier-journal.com/story/news/local/2022/07/29/as-floods-hit-eastern-kentucky-what-else-will-climate-change-bring/65385683007/ [https://perma.cc/W2P6-TLLW].
[8] Phil McCausland, Abandoned mines and poor oversight worsened Kentucky flooding, attorneys say, NBC NEWS (Aug. 6, 2022 5:00 AM) https://www.nbcnews.com/news/us-news/lack-regulation-abandoned-mines-worsened-kentucky-flooding-attorneys-s-rcna41716 [https://perma.cc/ASP2-YK99].
[9] Matt Kiesta, Eastern Kentucky: A Region in Flux, Fed. Reserve Bank of Cleveland (Mar. 2, 2016) https://www.clevelandfed.org/newsroom-and-events/publications/forefront/ff-v7n01/ff-20160302-v7n0105-eastern-kentucky-a-region-in-flux.aspx [https://perma.cc/L589-AVQX].
[10] Coal explained coal and the environment, eia (Dec. 2, 2021) https://www.eia.gov/energyexplained/coal/coal-and-the-environment.php [https://perma.cc/2FDY-S5E2].
[11] Coal Mine Reclamation, GAO (Apr. 5, 2018) https://www.gao.gov/products/gao-18-305 [https://perma.cc/Z6GN-X92K].
[12] McCausland, supra note 8.
[13] Id.
[14] Sumner, supra note 6.
[15] Id.
[16] Id.
[17] Id.
[18] Rick Rojas et al., How Coal Mining and Years of Neglect Left Kentucky Towns at the Mercy of Flooding, N.Y. Times (Aug. 4, 2022) https://www.nytimes.com/2022/08/04/us/kentucky-flooding-coal-industry.html [https://perma.cc/E7SZ-58JG].
[19] McCausland, supra note 10.
[20] Id.
[21] Phil McCausland, One flood-ravaged Kentucky community is suing a coal company, saying its negligence made damage even worse, NBC NEWS (Aug. 22, 2022, 7:10 PM) https://www.nbcnews.com/news/us-news/one-flood-ravaged-kentucky-community-suing-coal-company-saying-neglige-rcna43532 [https://perma.cc/R4ET-JLEY].
[22] Sumner, supra note 7.
[23] John McCracken, Is Coal Mining Increasing East Kentucky’s Flood Risk?, WIRED (Aug. 13, 2022, 8:00 AM) https://www.wired.com/story/is-coal-mining-increasing-east-kentuckys-flood-risk/ [https://perma.cc/D6P2-H569].