Oct
13
2012

MINING LITIGATION: WHAT’S IT ALL ABOUT

Some relief for spinning heads

By Mark ‘Buzz’ Belleville

A confluence of events over the past few years has reduced coal consumption in the United States to its lowest levels in decades. A recent string of court victories, however, has provided a lifeline to surface mining operations (commonly referred to as mountaintop removal) in Appalachia.

For years, about half of the electricity generated in the U.S. came from coal combustion. That number has dropped, somewhat staggeringly, to about one-third over the past two years. Appalachian coal companies have countered by nearly doubling the amount of their coal exports over the same time period. Reasons for the drop in domestic coal use are many, probably the greatest being the somewhat sudden abundance of cheaper and cleaner natural gas.

Industry also argues that regulatory efforts under the current federal administration have significantly contributed to decreased use of coal in this country. A handful of major new air quality standards that were delayed under the Bush administration have been proposed and/or implemented; there has been increased enforcement of mine safety standards after a 2010 disaster at the Upper Big Branch mine in West Virginia killed 29 miners; and there are continuing proposals to treat fly ash, a byproduct of coal combustion, as a “hazardous substance” under federal law.

Who’s on first

But it is the EPA’s attempt to utilize the Clean Water Act to make it nearly impossible for surface mining operations to dispose of the earth they displace into nearby valleys that directly targets surface mining operations prevalent in Appalachia.

The EPA purports to base its increased Clean Water Act enforcement on reports showing that Appalachian sites downstream of mountaintop-removal operations have significant increases in conductivity and hardness as well as sulfate and selenium concentrations. The coal industry pushed back, challenging the EPA’s Clean Water Act authority in federal court. In a series of three decisions over the past nine months, the U.S. District Court for the District of Columbia has sided with industry.

In the first decision, the court found that the EPA and the Army Corps of Engineers could not, by a memorandum of understanding, lay out a procedure whereby the EPA determines which discharge permit applications should be subject to enhanced environmental review.

The second decision focused on a particular permit that the Army Corps had issued to the Mingo Logan Coal Co. in West Virginia; the court found that the EPA lacked the authority to “veto” the permit once the Corps had issued it. And the final decision, rendered just recently, held that the EPA’s attempt to impose a “conductivity” water quality standard could not be done by a series of “guidance” papers.

A bit of background is needed to understand the recent court decisions’ impact on surface mining in Appalachia. The Clean Water Act, one of a series of major environmental laws passed in the early to mid-1970s, prohibits discharges into the waters of the United States without a permit. The EPA has authority over permits for the discharge of “pollutants,” while the Army Corps of Engineers has authority over permits for the discharge of “dredge” or “fill” material.

This makes sense. The act contemplates that the EPA is in charge of pollution-causing discharges (section 402), and the Corps is in charge of earth-moving discharges (section 404).

The problem for mountaintop removal is that while the displaced earth is clearly fill material under the CWA’s definition, it also contains pollutants that reportedly cause downstream contamination when the material is pushed off the mountain edges.

The U.S. Supreme Court, in a couple of decisions that have provided fodder for countless scholarly analyses, has determined that section 404 applies to, and that the Army Corps is the primary permitting authority for, disposal of earth from surface mining operations.

But the EPA still has a role to play. First, the EPA shares responsibility with the states to establish water quality standards, which in turn inform permitting authorities as they consider discharge permit applications. Moreover, the EPA has authority to prevent the Corps from issuing a discharge permit for a particular site when the EPA determines that it will have an adverse effect on municipal water supplies or wildlife or recreational areas. Importantly, the recent decisions do not undermine these aspects of EPA authority.

What the EPA cannot do, according to the recent decisions, is set water quality standards or determine enhanced environmental review by something less than formal rulemaking, or veto a section 404 permit after it has been issued by the Corps. So, is Appalachian surface mining out of the woods after these recent decisions? No. First, the appeals process needs to run its course. Second, even if the district court decisions survive — undoubtedly a win for Mingo Logan, which already has its permit in hand — it does nothing to undermine the EPA’s authority to stop future permits before they are issued. If anything, these recent decisions affirm the authority of the EPA to prevent, based on environmental concerns, the Corps from issuing such permits, so long as the EPA intervenes before their actual issuance.

Moreover, nothing in the decisions prevents the EPA from enacting regulations that codify both the conductivity water quality standard and the enhanced environmental review agreement between the EPA and the Corps.

Finally, and most important, the economic realities of natural gas abundance and renewable technologies, as well as the scientific realities of climate change, will determine coal’s (and surface mining’s) future far more than anything the EPA does.

Whether the EPA aggressively intervenes in section 404 permit issuance or engages in the rulemaking process to codify the conductivity water quality standard or the enhanced environmental review process for discharges into environmentally susceptible Appalachian streams will likely depend on the discretion of the occupant of the White House. But the truth is that there are forces far more powerful than EPA regulations driving the future of coal in Appalachia.

Mr. Belleville is a professor of sustainable energy law at Appalachian School of Law at Grundy, Va.. This article previously appeared in The Charleston Gazette.

Editor’s note: The cases Mr. Belleville discusses have all been covered at one time or another in The Highlands Voice. It’s just that there are so many cases flying around that it is hard to keep track of them and hard to see how they all fit together. In this article Mr. Belleville provides help doing this.

Written by Administrator in: Mountaintop Removal,The Highlands Voice |

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