Coal Tattoo

What’s next for mountaintop removal permit cases?

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Buried at the end of another one of his anti-EPA commentaries on the latest mountaintop removal ruling, Hoppy Kercheval over at West Virginia MetroNews buries an admission that I’m sure his advertising clients at Friends of Coal are not especially happy about:

The judge did point out, however, that his decision has nothing to do with the ongoing debate about the economic and environmental impacts of mountaintop removal mining.

“How to best strike a balance between, on one hand, the need to preserve the verdant landscapes and the natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide,” the judge wrote.

Fair enough. Let the public policy makers and the affected parties fight that out. And frankly, because of the destructive nature of mountaintop removal mining, it’s a tough sell for the industry.

The destructive nature of mountaintop removal? Hoppy really wrote that? The next thing you know, Don Surber and the Daily Mail are going to have a mea culpa on global warming, admitting that they’re wrong to ignore the overwhelming scientific evidence on what is probably the greatest threat facing human beings. West Virginia media’s Bray Cary already turned around on that crucial issue, to the point that his paper, The State Journal, has said it’s time for West Virginia to look beyond coal. And despite complaints from some that he didn’t go far enough, the recent statements from Sen. Jay Rockefeller about the coal industry’s public relations campaign are a significant step forward politically here in West Virginia’s coalfields.

So one question lots of people are asking is: What next? What comes now in the continuing saga of the future of mountaintop removal and coal mining in general, a debate that U.S. District Judge Reggie Walton plainly stated his ruling against the Obama EPA comes nowhere near resolving.

Well, Hoppy asked Gov. Earl Ray Tomblin about that on Talkline yesterday, and there was one especially interesting point made by the governor regarding the Walton decision:

There’s always the right to appeal by EPA. But we’ve had instances where our Department of Environmental Protection has been in court over environmental rulings that they have made. Normally when the judge says you are wrong, then our DEP has backed off. We would certainly hope that after two times that Lisa Jackson and the federal EPA would do the same.

Now, we have no idea of EPA is going to appeal or not. And if you’ve ever tried to get the Obama EPA to answer simple questions about things like this, then you can certainly understand the frustration DEP officials and the coal industry have in trying to deal with the agency. And keep in mind that we’re expecting another major mountaintop removal permit ruling from U.S. District Judge Robert C. Chambers any time now.

But for now, go back and read this part of what Governor Tomblin said again:

Normally when the judge says you are wrong, then our DEP has backed off.

Really? Well, more than a year ago a judge — in the form of the state Environmental Quality Board — told DEP it was wrong about a mountaintop removal permit, Arch Coal’s New Hill West Mine in Monongalia County. In its formal order, the EQB said that DEP wrongly ignored evidence about not only specific water quality damage at that mine site, but about the broader science showing that large-scale surface mines are degrading Appalachian streams.   The board concluded:

The Board finds that a growing body of science has demonstrated that discharges from surface coal mines in Appalachia are strongly correlated with and cause increased levels of conductivity, sulfate, and total dissolved solids in water bodies downstream from mines. The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams. The harm and significant adverse impacts include the extirpation of entire genera and the disruption of community composition crucial to functioning ecosystems.

Photo by Vivian Stockman, Ohio Valley Environmental Coalition.

So what did DEP and agency Secretary Randy Huffman do? Well, here’s what Randy said about the EQB decision:

This was the worst ruling I’ve ever seen out of the EQB as far as a lack of respect for the rule of law.

Contrary to what the Gov. Tomblin said is normal practice, DEP appealed. Kanawha Circuit Judge James Stucky sent the case back to the EQB, asking the board to simply provide a more detailed discussion of the reasoning for its decision. Now, the EQB has done that. And — even after Gov. Tomblin tried to stack the deck by getting rid of the board’s two most pro-environment members — board members have again ruled against DEP and in favor of the Sierra Club. The board’s latest ruling, made public the same day as Judge Walton’s decision, is even tougher on DEP, concluding:

Despite long-standing and abundant evidence with the WVDEP’s watershed database for biological damage … in streams draining surface mines in the West Virginia coalfields, the WVDEP has made little attempt to determine the cause of the damage, or to limit it.

And as we reported in today’s print editions of the Gazette, DEP officials are very strongly leaning toward another appeal. Gov. Tomblin says now that Judge Walton has ruled against Lisa Jackson and EPA twice in the mountaintop removal crackdown, EPA should just accept the result. Well, the EQB has now ruled against DEP twice on this mining permit — and the broader issues about mountaintop removal that it raises — so shouldn’t the same reasoning apply? Or does Gov. Tomblin think accepting two legal defeats in a row only applies if those defeats amount to wins for his friends in the coal industry?

These are most definitely not rhetorical questions.

Gov. Tomblin explained to Hoppy that he thinks the issue before Judge Walton about EPA’s involvement in mining permits was mostly an issue of “state’s rights,” which surely everyone understands is first of all a loaded term because of its historic use in opposition to civil rights and second of all is really just about weakening federal protections for things like the environment, public health, consumer rights and worker safety.

In this instance, though, we have another state agency (one with two new members picked by Governor Tomblin) who is telling DEP it’s wrong.  The West Virginia Legislature set up the process for DEP decisions being appealed to the Environmental Quality Board, and it was the state Supreme Court that spelled out exactly on what basis those appeals should be heard and decided. So this isn’t about “state’s rights” anymore.

Already, some of the leadership at DEP is grousing around that the board’s ruling wrongly spells out the state of the science about mountaintop removal. I asked Tom Clarke, director of the DEP Division of Mining and Reclamation, about some of the board’s findings on the science, and he told me:

I’ve heard some people with respected scientific opinions on this subject don’t agree.

OK. DEP lawyers had their chance during the appeal to present these people as witnesses. The board found DEP’s evidence and arguments unpersuasive, concluding that expert testimony about stream damage presented by the Sierra Club’s witnesses — including Margaret Palmer of the University of Maryland and Emily Bernhardt of Duke — “was un-refuted.”

Yesterday, I had quite a long talk with Randy Huffman, and he makes a fair point. Science alone doesn’t decide this issue of how much mountaintop removal, if any, West Virginia will have. Science is one tool. So is economics. It is a policy decision in many ways. In other words, it’s a political decision. Randy explained his thoughts on that in our print edition story:

I think you have environmental impacts anytime you turn a shovel. There is environmental degradation that takes place with mining — significant is a nebulous term that people use based on what they believe. That’s a term people use to promote a political agenda.

And you can certainly count Randy Huffman among those who believe EPA has some unspoken, unreasonable, irrational political agenda regarding coal. He told me:

EPA appears to be trying to curtail coal mining, and they latch on to whatever is most convenient for their argument.

But, I asked Randy, isn’t it also true that many people believe political leaders like Governor Tomblin are doing nothing but trying to protect coal, and latching onto whatever is most convenient for that argument? Randy acknowledged, though — and this didn’t make the print edition — that politics play a role in how the state ultimately makes such decisions about regulation of coal mining (or any other industry, for that matter):

Yes. I work for people who are adamant and ardent supporters of coal mining. That is what it is.

Sure, and part of what it is happens to be one factor that leads many people across the state to not trust DEP as an organization, even though if they happen to actually know somebody who works there they will probably admit the agency is made up of hard-working fellow West Virginians who want to do a good job and do what’s best for the state.

Randy explained that what Governor Tomblin meant is not that EPA should not appeal the decision from Judge Walton. EPA has every right to do that, Randy said. What Randy said he’s watching for is if EPA — despite Judge Walton — continues to try to basically use its water quality guidance to keep blocking or at least slowing down mining permits in West Virginia.

And Randy offered the example of the lawsuits against DEP over its failure to properly limit water pollution discharges from abandoned mine sites it controls through its Special Reclamation Fund. After losing the court case, Randy noted, DEP worked out a deal with citizen groups for a schedule to fix the problem. Keep in mind, though, that DEP settled the matter only after losing not only a second district court case, but also a federal appeal.

Another thing Randy told me is that what happens next in this seemingly never-ending dispute over mining permits is really up to EPA, and whether the Obama administration wants to appeal Judge Walton’s decision or live with its results, by giving DEP its authority and taking a lesser role in the permit review process:

I think the ball is in EPA’s court.

Clearly, though, the ball is also in DEP’s court.  Gov. Tomblin could tell DEP not to appeal the EQB’s ruling, and to just live with the results, and improve its permit process in the manner the board ordered. Randy could make that decision on his own. Though after talking to him this morning, it’s obvious that isn’t going to happen. Randy said DEP will appeal. Certainly, DEP wants to challenge a small portion of the EQB ruling that mandates the state use the now-nullified EPA guidance document on conductivity pollution. But it sounds like DEP is also going to more broadly challenge the entire board order again. Nothing the board’s new and more detailed order, Randy had this to say about the latest ruling:

The EQB all of a sudden obtained vast amounts of expertise that they never had before. They got really technical. [It] almost makes me wonder if the EQB had some help writing that.

(Just for the record: The three EQB members that ruled against DEP have Ph.D.s in geology, engineering and microbiology. One teaches environmental studies at Shepherd University, the other environmental science and Marshall University, and the third is dean of Marshall’s College of Science.)

So, rather than conducting the sorts of pollution testing the EQB recommends and adding the kinds of discharge limits that testing shows are needed in future mining permits, the DEP is going to spend public resources challenging that mandate in circuit court and, perhaps ultimately, the state Supreme Court.

At the same time, the other thing that’s in DEP’s court is how it moves in implementing a legislative mandate to come up with a new rule that spells out how state officials will enforce the narrative water quality standard that is at the heart of the New Hill West permit case.

Suppose, for example, that instead of waiting to see some of the nation’s top experts on mining damage to streams across the courtroom from them, DEP officials had a public roundtable, inviting those experts in to present suggestions on how to do a scientifically valid implementation plan for the narrative water quality standards? Or suppose DEP scheduled a scientific hearing, where experts who have published research on mining’s impacts on water quality could educate the public on their findings?

Part and parcel of the political decision that folks like Governor Tomblin and his predecessor, now-Sen. Joe Manchin, make to not enact much tougher restrictions on surface mining is their continued denial that this mining is doing any damage, either to the natural environment, or to the people who live near these operations.  Recall, just for instance, how Governor Tomblin tried to pretend during last year’s debate that there was only one study — not more than 20 — that suggested living near mountaintop removal puts residents at a greater risk of serious illnesses:

I think that was one report that was done. Before I would believe it, there would have to be additional studies done to prove that fact.

Randy Huffman is right that deciding how much damage from mountaintop removal is too much — how much water pollution, how many increased health risks — is considered acceptable boils down to a political decision, made by elected officials and the agencies they appoint. And Randy’s also right when he explains that it is increasingly difficult for anyone to tell fact from fiction in the furious debate over coal mining issues. Randy was talking with me yesterday about Sen. Rockefeller’s speech a few weeks ago, and said:

I wouldn’t disagree with what he said. But he missed a big side of the argument. Both sides are guilty of the same thing. Sensationalistic rhetoric and half-truths, those are tools used by both sides of this argument. I really believe that it’s unfortunate.

What’s also unfortunate is that there’s a body of peer-reviewed science that is left out of the discussion by most government officials and media outlets, perhaps because disagrees with the political goals of the coal industry and West Virginia elected official.  Right now, about the only answer to that is for the coal industry to put up $15 million to produce its own reports to show us “what the science really shows.”

Randy told me that he’s confident that if he told Governor Tomblin DEP had become convinced that mountaintop removal was degrading the state’s environment or harming public health that the governor would insist something be done about it. I’m sure many people who read this blog will find that hard to believe.

DEP has gone to court to insist on the right, the authority, and the responsibility to make such decisions. But there’s a clear perception among many in the public that the agency, controlled by a pro-coal governor, tips the scale in the industry’s favor. One way to combat that — and to perhaps begin to build more public trust — would be to publicly bring in key scientific experts for a session about what the current data shows about mining damage to the environment and public health. DEP could do that, or it could just wait for the next permit appeal and see those experts on the other side of the courtroom – again.