Lawlessness
Haden must force compliance

Editorial from the Charleston Gazette, Jan. 8, 2002

Any impartial observer can see that state and federal regulators won't do their jobs enforcing strip mine regulations unless a federal judge forces them to.

A federal judge has been asked. Lawyers for the West Virginia Highlands Conservancy asked Chief U.S. District Judge Charles Haden II to force the U.S. Office of Surface Mining to fix more than two dozen areas of West Virginia's mining program that don't meet federal standards.

OSM has been asking West Virginia to make some of the improvements for more than a decade. The state has essentially ignored OSM. There have been no consequences for that inaction.

These are not simply matters of dotting regulatory i's and crossing technical t's. These are real problems that affect the environment and the financial health of West Virginia while allowing coal companies to shift much of their cost and responsibility onto taxpayers.

For instance, there is the deficit in the abandoned mine cleanup fund. That deficit ranges from $36 million to billions, depending on whose estimate you trust. The state and OSM have known about the deficit for years. The deficit violates federal law.

Just last year, the state Department of Environmental Protection came up with a "fix." But the so-called fix - the result of a backroom deal between DEP Secretary Michael Callaghan and the coal industry - won't provide nearly enough money to erase the deficit and cover future costs of reclaiming abandoned mine land.

OSM is "deferring" its decision on whether the proposal will actually cure the long-term problem, even though federal law requires the state to have a sound bonding system.

Citizen groups [like the Highlands Conservancy] shouldn’t be forced to sue to fix such problems, but that is clearly the sole alternative.

"Nothing short of this court's intervention will force OSM to perform its nondiscretionary duties under [the Surface Mining Control and Reclamation Act]," wrote one of the Highlands Conservancy's lawyers.

Haden knows the extent of the problem. In a previous ruling, he wrote that DEP and OSM inaction had created "a climate of lawlessness. ... Agency warnings have no more effect than a wink and a nod, a deadline is just an arbitrary date on the calendar and, once passed, not to be mentioned again."

Only one person at the moment has both the will and the power to change that "climate of lawlessness." He's the one wearing a black robe.