Coal Tattoo


Photo by Antrim Caskey

“This is one of those things where I want science to help lead us. I will tell you that there’s some pretty country up there that’s been torn up pretty good. I will also tell you that the environmental consequences of the runoff from some of these mountains can just be horrendous. … Not taking that into account because of short-term economic concerns, I think, is a mistake. I think we have to balance economic growth with good stewardship of the land God gave us.”

— President Barack Obama on mountaintop removal,  March 23, 2009.

The Obama administration is planning what it calls a major announcement for noon today, to release details of its program for reviewing mountaintop removal coal-mining permits. But so far, the few details that have come out suggest little in the way of a real clarification — and the only major step to more closely regulate mountaintop removal that the administration has clearly announced is one that a federal judge already ordered it to take.

EPA Administrator Lisa Jackson and top officials from the Army Corps of Engineers briefed the White House on the program earlier this week, and met yesterday with West Virginia Congressman Nick J. Rahall to fill him in on their efforts.

And now, The Associated Press is describing the program this way:

The proposal is part of an agreement between three federal agencies that will lead to a series of changes to boost federal oversight and environmental screening of the practice.

The AP bases this on an interview in which Nancy Sutley, head of the White House Council on Environmental Quality, said “that the Interior Department, Environmental Protection Agency and Army Corps of Engineers will establish clear standards that will ensure the environment, economy and health of Appalachia are adequately protected.”

“We need to give the right amount of scrutiny to these activities,” Sutley said.

My understanding, based on talking to sources familiar with the planned announcement, is that EPA and the Corps will also announce that they are revoking Nationwide Permit 21, the streamlined permitting review program that for years made for easy permit approvals of large mountaintop removal valley fills.

The Washington Post report was also handed an interview with Sutley, and their reporting backs up what I’ve been told about NWP 21:

The agreement proposes to end a fast-track approval process for new mining permits in Appalachia, requiring that they undergo a more detailed environmental review.

And so does the AP story:

On Thursday, the Obama administration will take another step by proposing to eliminate a short cut in place since 1982 that allows mining companies proposing similar projects to get a general permit under the Clean Water Act, rather than being evaluated on a case-by-case basis.

That development is particularly interesting, given that  the Justice Department just yesterday filed a legal notice that it plans to appeal the ruling by U.S. District Judge Joseph R. Goodwin that nullified NWP 21 in Southern West Virginia. Any move by the Obama administration to eliminate the streamlined permit in other coalfield districts must be seen as something that happened only because citizen groups had already successfully challenged that process in court. I’m not sure that it’s really that big a deal — and more importantly, if they’re trying to eliminate confusion, they’re not doing so …

Why does the administration one day file an appeal of a court ruling that blocked streamlined permit reviews, and then the next day announce it’s going to end those streamlined reviews? (Neither the AP nor the Post point out this confusion or mention the administration’s appeal of Goodwin’s ruling, by the way).

In addition, the coal industry and the Corps of Engineers may argue that most mining operators have switched over to applying for permit through the more rigorous Individual Permit (IP) process. In one recent situation, the Corps revoked a NWP 21 authorization in Virginia. But the Corps did so only under pressure from EPA, which acted only under pressure from Goodwin’s ruling — which came about only because citizen groups challenged NWP 21 authorizations in court.

In his story, Post reporter David A. Fahrenthold goes on to say that Obama officials also plan to:

… Reassert federal oversight over state-level regulators, allowing checks of their work for evidence of lax scrutiny, and would try to close loopholes that allow waste rock to be dumped near streams. 

His story continues:

Sutley said they were designed to provide certainty about the administration’s views on mountaintop mining — ending the confusion created when federal officials announced a massive review of pending mine permits in March.

But there’s no guarantee of that.

As outlined yesterday, the administration’s agreement is more like a promise than a policy, pledging better scrutiny of the mines but providing few specifics about how that would work in practice.

What’s this all mean?

Well, The Washington Post wasted no time in defending Obama’s move in an editorial that declared, “President Obama’s decision will enrage environmentalists, but it’s the right one” —

While Mr. Obama may have wanted voters to believe otherwise, he never flat-out said he would end this brand of mining. His decision reflects energy and political realities. Coal will remain an essential energy source for some time, while ending mountaintop removal mining would require action in Congress. There it would be opposed by coal-state members whose help Mr. Obama needs to get the more ambitious climate-change bill passed. Would we rather see a better way to extract coal? Certainly. But vigorous enforcement of the laws can help protect the environment until viable energy alternatives render the practice unnecessary.

Writing for The Huffington Post, Jeff Biggers isn’t buying that:

All well-meaning intentions aside, if the Obama administration truly wanted to “enforce” mountaintop removal regulations and protect American watersheds, drinking water, and communities from catastrophic flooding and toxic blasting, it would simply reverse a 2002 Bush and dirty coal lobby manipulation of the Clean Water Act and restore the original definition of “fill” material to no longer include mining waste.

Rahall? Well, here’s what he said so far:

 “The devil is in the details of course, but if this new agreement brings clarity, consistency and certainty to the regulatory process then that is far better than the status quo.”

Stay tuned … it promises to be an interesting day.