Coal Tattoo


Gazette photo by Chris Dorst. Flight courtesy of Southwings.

sutley.jpgAt the start of yesterday’s conference call with reporters, White House environmental adviser Nancy Sutley made a couple of bold statements.

First, she proclaimed that the Obama administration was “taking unprecedented steps to reduce the impacts of mountaintop coal mining.”

Next, she declared that the administration “is doing all it can under existing laws and regulations to curb the most environmentally destructive impacts of mountaintop coal mining.”

Was either of these statements true?

First, are the actions outlined in the Obama plan unprecedented? Anyone who followed the rulings of the late U.S. District Judge Charles H. Haden II might disagree…

haden.jpgIn an October 1999 decision, Judge Haden ruled that the stream “buffer zone” rule outlawed valley fills that would bury perennial or intermittent streams.  Then, in May 2002, Haden ruled that the Clean Water Act did not allow any valley fills at all, unless companies proposed them as part of some post-mining development plan.

Of course, we now know that the 4th U.S. Circuit Court of Appeals in Richmond, Va., overturned both of those rulings. But do Obama’s plans to “strengthen environmental reviews,” “minimize the adverse consequences,” or “coordinating the regulation” by difference agencies really do more to reduce impacts than either of Judge Haden’s decision? If not, was it really accurate to call the Obama plan “unprecedented”?

Is the Obama’s plan even as tough as what federal regulators decided to do in the final months of the Clinton administration to try to curb mountaintop removal?

Back in April 2000, lawyers from Clinton’s Justice Department filed a court brief that sided with key language in Haden’s 1999 decision, agreeing that the buffer zone rule applied to the footprint of valley fills and, in fact, was intended to reduce the size and impact of such fills.

Whether you think that reading of the buffer zone is right or wrong, there’s little question that applying buffer zone protections to the footprint of valley fills — and thus outlawing fills in perennial and intermittent streams — would have a much more significant impact than any of the things Obama has so far announced.

ken-salazar.jpgThat’s especially true because Obama’s Interior Department has yet to say how its Office of Surface Mining, Reclamation and Enforcement plans to interpret the buffer zone rule. Sure, Interior Secretary Ken Salazar announced with much fanfare in April that OSMRE was going to reverse Bush administration changes to the rule, and revert to a 25-year-old wording of the regulation. But as Joan Mulhern of EarthJustice said at the time:

Unless this announcement is accompanied by a firm commitment to enforce the law as it applies to mountaintop removal and valley fills, it’s meaningless.   Secretary Salazar’s comments at the press conference lacked such a commitment; he made it sound as if this action would return the situation to the status quo before the Bush 11th-hour change to the stream buffer zone rule.  But the history of the stream buffer zone rule is that it hasn’t been enforced. Announcements are fine but the deeds need to match the words. This gets us nowhere if the stream buffer zone rule is not enforced to prohibit mountaintop removal and valley fills.

That brings us to the part where Sutley said the administration “is doing all it can under existing laws and regulations to curb the most environmentally destructive impacts of mountaintop coal mining.”

Many of the things that the Obama administration talked about — and many more things that environmentalists would like to see done — would require changes in existing regulations.

For example, environmental groups want Obama to reinstate the old version of the Clean Water Act “fill rule,” which would essentially do what Haden’s second mountaintop removal ruling did — ban valley fills unless they are proposed as part of some post-mining land use plan. But doing that would require a new rulemaking, something Obama’s folks haven’t ruled out, but are certainly not announcing at this point.

But assuming Interior Department lawyers succeed in throwing out the Bush “buffer zone” rule changes, and reverting to the 1983 language of that rule, interpreting it as Haden did — and as the Clinton adminstration was moving to do — does not require any new rules or statutes. Obama could do that “under existing law and regulations,” to use Sutley’s phrase.

So are they going to do so? We don’t know, because they aren’t saying.

Bill Estep, a reporter from the Lexington Herald-Leader, tried to find out during yesterday’s phone call with Obama aides (listen to it here).

hayes-portrait-high.jpgDeputy Interior Secretary David Hayes conceded that the 1983 buffer zone rule, over the years “has been applied in a non-consistent and imperfect manner.” Obama’s multi-agency plan calls for OSMRE to issue guidance on interpreting the rule sometime before the end of 2009. In the longer term, OSMRE is supposed to “consider revisions” future revisions to the rule. Hayes said OSMRE might also be looking at beefing up its oversight of how well state mining regulators enforce their own versions of the buffer zone rule.

Still, it’s hard to even know how that additional oversight might work, given that OSMRE isn’t telling anyone how it interprets the rule. I tried to press the issue further, by calling the Interior Department PR person listed on yesterday’s news release.  I got kicked down to Peter Mali, spokesman for the leaderless OSMRE, who said — as I reported in today’s Gazette:

“The guidance is still being developed. That’s where we are. It’s unclear what the guidance will and will not address.”