Well, it wasn’t especially surprising when the comments started to roll in yesterday following the major legal victory for the U.S. Environmental Protection Agency.  A federal appeals court had found that EPA has clear authority to veto Clean Water Act dredge-and-fill permits — like the one for the Spruce No. 1 Mine in Logan County. Given a huge win like that for EPA what are the folks who peddle the “war on coal” stuff going to say?

We’ve got the full story of the ruling here, and you can read the 15-page decision for yourself here. Today, let’s step back and look at the way our region’s political leaders responded to this ruling.

First out of the box (or at least into my email inbox) was Rep. Nick J. Rahall:

Today’s decision would open the floodgates to disrupting coal mining in West Virginia and elsewhere by granting the EPA unprecedented and seemingly limitless authority over Clean Water Act 404 permits. The court, in this decision, gives license to the EPA to retroactively veto any Clean Water Act 404 permit ‘whenever’ the Administrator deems necessary, rendering all such permits for any range of industrial or construction activities throughout the country completely meaningless.

This decision undercuts the Clean Water Act authority vested by Congress in the Corps of Engineers and would upend the traditional balance that has existed between the states and the federal government in the permitting process. Today’s ruling makes clear that Congressional action will be needed. I will soon be reintroducing the Clean Water Cooperative Federalism Act, legislation the House approved last year to prevent the EPA from using the guise of clean water as a means to disrupt coal mining as they have now done with respect to the Spruce Mine in Logan County, West Virginia.

Let’s look at the key part of that again:

The court, in this decision, gives license to the EPA to retroactively veto any Clean Water Act 404 permit ‘whenever’ the Administrator deems necessary, rendering all such permits for any range of industrial or construction activities throughout the country completely meaningless.

Seriously? Let’s remember that the Spruce Mine is in Rep. Rahall’s district. More importantly, let’s remember that Rep. Rahall, in his first year in Congress, served on the conference committee that worked out the final version of the 1977 federal strip-mining law. He’s supposed to know something about this stuff, right? So why would Rep. Rahall so blatantly misrepresent what the U.S Circuit Court of Appeals for the District of Columbia did in this case?

The court absolutely did not say that EPA can retroactively veto any Clean Water Act 404 permit ‘whenever the Administrator deems necessary.” The words “deems necessary” don’t appear anywhere in the court’s ruling. What the court did say was this (see the bottom of page 3, continuing to page 4):

Subsection 404(c) authorizes the Administrator, after consultation with the Corps, to veto the Corps’ disposal site specification — that is, the Administrator “is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and … to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site” — “whenever he determines” the discharge will have an “unacceptable adverse effect” on identified environmental resources.

That part about EPA having authority to veto permits — even those that have already been issued — whenever agency officials determine the discharge will have an “unacceptable adverse effect” is particularly important.  Here’s the full section from the law:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

That’s exactly the determination that the EPA made in this case. You can read the EPA’s proposed determination, the regional administrator’s recommended decision and the EPA’s final determination to understand the full scope of EPA’s reasoning. But the bottom line isn’t really all that complicated. There’s a growing body of evidence that shows mountaintop removal mining of the sort proposed here is very harmful to water quality and aquatic life. After the Spruce Mine permit was approved, this evidence grew even stronger, and the Obama administration decided — contrary to the previous administration — that the likely impacts of this giant mine were not acceptable. Here’s what Pete Silva, then EPA’s assistant administrator for water, said about the reasons for EPA’s permit veto:

The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend. Coal and coal mining are part of our nation’s energy future and EPA has worked with companies to design mining operations that adequately protect our nation’s waters. We have a responsibility under the law to protect water quality and safeguard the people who rely on clean water.

Why is this important? Because what you don’t see Rep. Rahall even making the most basic attempt at arguing is that mountaintop removal doesn’t do exactly what EPA says it does.  Does Rep. Rahall believe there is scientific evidence that disproves the studies that say mountaintop removal’s impacts are “pervasive and irreversible” ? Does he have some science that disputes recent government and academic work that says the often overlooked impacts on forests, climate and human beings are not as bad as scientists believe they are? Does the question of what mountaintop removal is doing to forests, streams and people — not to mention mountains — even one that registers for Rep. Rahall? If so, he certainly doesn’t talk much about it. I’m still waiting to see if he figures out which federal agency should be looking into the public health questions (hint: some of his House colleagues got tired of waiting and wrote their own bill to require a National Institute of Environmental Health Sciences investigation).

A key part of the strategy from coalfield politicians in dealing with the mountaintop removal issue (as with the climate change issue) is to simply ignore the science, to pretend significant impacts aren’t happening. If you take those impacts out of the discussion, then you indeed have just an unsupportable political assault on coal of the sort local political leaders and industry lobbyists describe.

That brings me to another theme that runs through the comments yesterday from coalfield political leaders: That this ruling is somehow just more of the “war on coal”.  Here’s Sen. Joe Manchin:

For too long now, the EPA has been waging a destructive war against Appalachia coal mining and it is costing countless American jobs and investment … Today’s court decision is yet another example of bureaucracy at its worst: One agency grants a permit, another agency takes it away and business suffers in the end.

Another example of bureaucracy at its worst? OK, let’s be clear here. This was a decision by a federal appeals court panel at the D.C. Circuit. This is a conservative dominated court, and the three judges who heard this case were appointed to the federal bench by Presidents Reagan, H.W. Bush, and W. Bush (see here, here and here).

These Republican-appointed judges on a very conservative appeals court made it very, very clear that EPA “has, in effect, the final say on the specified disposal sites ‘whenever’ [EPA] makes the statutorily required ‘unacceptable adverse effect’ determination.”  Importantly, the court made this ruling based on the
plain, unambiguous directive” of Congress. This wasn’t some creature of a runaway bureaucracy, but of Congress — and of federal judges reading and interpreting the laws Congress passes. It’s how our system works, and it’s too bad elected officials want to mislead people by describing it as anything else.

Another thread in yesterday’s statement is summed up in this comment from Republican Rep. Shelley Moore Capito:

Not only will this ruling cost West Virginians hundreds of jobs, but it begs the question: Who is safe?  If the EPA can take back a permit from a coal mine in West Virginia, they can do the same to any business in America.

Sen. Jay Rockefeller did not issue a press release on the ruling, but made similar remarks in response to my inquiry:

We need to make sure that workers and businesses have the certainty to do their jobs and that when the federal government decides for or against issuing a permit, workers and businesses know it’s the final decision.

OK, now let’s remember that in the 40 years that EPA has had this veto authority, it has only used it 13 times. And as EPA explained in its legal brief in this appeal, the veto authority was used post-permit issuance two previous times under different administrations, in 1981 and in 1992. While a rare thing, this is nothing new and certainly not — as Rep. Rahall argued in his statement — “unprecedented.”

And really, this argument about how once a Clean Water Act permit is issued it should be “final” simply doesn’t reflect reality — let alone sound public policy. No government license is “final.”  You have to renew your driver’s license, don’t you? And if you don’t follow the rules of the road, the government can take that license away. The same goes for environmental permits.

Strip-mining permits can already be revoked under the federal Surface Mining Control and Reclamation Act. The West Virginia Department of Environmental Protection’s own mining rules spell out that permits can be revoked for repeated violations. Other kinds of Clean Water Act permits for direct pollution discharges can also be revoked for noncompliance or if the permitted activity is found to endanger human health or the environment.

Interestingly, the EPA’s authority to veto a Corps-issued 404 permit is not necessarily available simply for instances where permit requirements were violated or even where human health or the environment is endangered. As mentioned above, EPA can only veto a 404 permit if agency officials find the permitted activity:

 … Will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

And it’s important to remember that concerns about the Spruce Mine’s impacts aren’t just speculation. Even the limited mining that’s gone on at the site so far has produced violations of state water quality limits for selenium, a fact that EPA cited in its final determination as support for its finding related to the project as fully proposed.

So does the available evidence support EPA’s finding that the Spruce Mine would have “an unacceptable adverse effect”?  Well, neither the D.C. Circuit nor District Judge Amy Berman Jackson got to that issue, which is raised by Arch Coal under Administrative Procedure Act claims that EPA acted in an “arbitrary and capricious” manner. The D.C. Circuit sent those issues back to district court for Judge Jackson to consider.

And, whether they mean to or not, Sens. Rockefeller and Manchin pointed out the potential for ongoing proceedings in the only part of yesterday’s statements that really made any sense. Sen. Rockefeller, for example, said:

This ruling leaves open the question of whether the EPA was fair to all the players involved in this case, and it even further prolongs the uncertainty. West Virginians deserve better.

Sen. Manchin added:

I remain hopeful that the merits of this case will show that the EPA has overreached in withdrawing the Spruce No. 1 Mine permit.

 If you read both statements carefully, though, neither of them offers any evidence that EPA was wrong. Sen. Rockefeller says yesterday’s ruling “leaves open the question of whether the EPA was fair,” while Sen. Manchin says he hopes “the merits of the case” will show EPA was wrong. Hardly strong stuff.

Finally, let’s not forget about West Virginia Gov. Earl Ray Tomblin. I didn’t see an actual press release from Gov. Tomblin, but his office replied to my inquiry for a comment with  a statement that said, in part:

Today’s decision hurts our state’s ability to produce the energy our nation requires.

Not for nothing, but given the most recent forecast from the Energy Information Administration for the future of Appalachian coal, where exactly is the evidence that a veto of the Spruce Mine permit is really that important to the nation’s energy picture overall? Appalachian political leaders keep chasing after EPA in the name of more mountaintop removal permits, while saying and doing little about trying to find ways to diversify the region’s economy and find a path forward into a future where coal seems likely to play less of a role in supporting local families.