In this aerial photo, part of the work already done at the site of the Spruce Mine can be seen alongside Pigeonroost Hollow, at right. Photo by Vivian Stockman, flyover courtesy of Southwings.
It’s certainly not surprising that the Daily Mail and Hoppy Kercheval both pounced earlier this week on the D.C. Circuit Court of Appeals decision that the U.S. Environmental Protection Agency in fact does have legal authority to veto a mountaintop removal permit issued by the federal Army Corps of Engineers.
Both of these coal industry defenders managed to do so without mentioning that the decision came from a panel of three judges appointed by some of their favorite presidents. Never much for nuance, the Daily Mail’s editorial writers declared that the ruling “will end coal mining.” Hoppy went off onto some thing about M.C. Escher which had the feel of a college freshman reaching for a smart analogy.
And it was certainly not surprising that West Virginia political leaders reacted the way they did to this ruling. We ran through some of the problems with their narrative the other day. But it’s worth mentioning this all again, now that Sens. Jay Rockefeller and Joe Manchin, both D-W.Va., have reintroduced something they have decided to again call the “EPA Fair Play Act.” The bill’s official purpose is this:
To amend the Federal Water Pollution Control Act to clarify and confirm the authority of the Environmental Protection Agency to deny or restrict the use of defined areas as disposal sites for the discharge of dredged or fill material.
To clarify and confirm EPA’s authority. Not so much. What the bill actually does is strip EPA of authority that three Republican judges have said is clearly in the current Clean Water Act passed by Congress 40 years ago. The text of the original version of the legislation is online here. This is how it changes the key section of the Clean Water Act, Section 404(c):
The Administrator Until such time as a permit under this section has been issued by the Secretary, 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.
But what I really wanted to mention here is the rhetoric that Sens. Manchin and — most unfortunately, Sen. Rockefeller (who had otherwise recently been trying to take a more reasoned and balanced approach to coal industry issues) — are throwing in their press releases on this legislation.
Here’s Sen. Manchin, for example:
It is fundamentally wrong for any bureaucratic agency to regulate what has not been legislated. Giving such absolute power to an agency will have a chilling effect on investment and job creation far beyond our great state of West Virginia.
Regulate what has not been legislated? What is he talking about? EPA’s authority to veto the Spruce Mine has, in fact, been legislated, and a very conservative federal appeals court panel has upheld it. Is somebody in Sen. Manchin’s press office just copy-and-pasting quotes from other EPA press releases, or does the senator not understand the status of this matter?
There’s more, and this is the part I really wanted to talk about:
As we continue to face a recovering economy, American businesses must have certainty in the marketplace. It is simply common sense to allow companies that already have been granted permits to finish the work they have started.
In their joint press release, Sen. Rockefeller went even further down that road:
It’s only fair that when the federal government makes a decision about a permit, that decision doesn’t change. Our workers and businesses need to have that certainty to be able to do their jobs.
Let’s think about the reasoning here: When the government makes a decision … that decision never changes? Businesses need to have certainty?
Two things come to mind about this argument.
First, what about some certainty for the people who live near mountaintop removal operations? Do they need to have certainty about the quality of their water supplies, about having clean air, or not having their lives disrupted by blasting, coal truck traffic and dust storms? Should they have certainty that they won’t have to face increased risk of illnesses like cancer? That their children won’t face increased risks of birth defects? Are these things even worth our elected officials talking about?
Second, and perhaps more fundamentally, should all government decisions about permits or other authorizations for business (or personal, for that matter) activity be final?
Well, it wasn’t so long ago that then-Gov. Manchin was questioning why the state and federal inspectors didn’t shut down a certain coal mine that blew up and killed 29 of his state’s coal miners. This is what he said during a House committee field hearing in Beckley:
There are questions we need answered. Why did serious safety violations repeatedly occur at Upper Big Branch? Were the miners concerned about their safety? Were miners threatened or intimidated from speaking out? If state or federal regulators knew that the mine was unsafe, why was it allowed to continue to operate?
There’s been much discussion about administrative and judicial procedures that can allow a mine to remain open in the face of significant safety violations that would otherwise warrant a closure order. We need to ask ourselves, ‘‘Is bureaucracy getting in the way of safety?’’
Of course, there are many circumstances under which a number of laws can prompt mining permits to be revoked. The Clean Water Act allows Section 402 discharge permits to be revoked. The Surface Mining Control and Reclamation Act allows strip-mining permits to be revoked. Permits issued under both laws must periodically be renewed, and those renewals can be denied under a variety of circumstances.
This is the way any number of regulatory systems work in our country and our economy.
If the FDA discovers that a previously-approved medicine is actually making people sick, should they be able to order it off the shelves? If we find out that some wonder chemical that’s been on the market for years actually causes cancer, should EPA be able to stop its production? What about something more basic: Should we be able to take away the license of a repeat drunk driver?
Followed down its logical path, the argument Sens. Rockefeller and Manchin make says that none of those sorts of government actions should be allowed. Surely they don’t mean what they’re saying — they must certainly think that part of the purpose of government, of having regulatory agencies in the first place is to protect the public, something that necessarily involves evolution and changing standards as science learns more about any variety of activities and substances.
What’s going on here is that Sens. Manchin and Rockefeller — along with the coal industry and a lot of other coalfield political leaders — don’t like the fact that EPA has been for the last four years trying to apply some of what science is teaching us about mountaintop removal coal-mining to the way that activity is regulated. In some instances, EPA’s efforts have brought compromised mining permits that allowed coal production to move forward with fewer impacts (see here, here and here). At least one major coal producer has said it’s going to abandon mountaintop removal, and continue mining coal in Appalachia through less-damaging methods. In the case of the Spruce Mine, the company made some concessions previously, but didn’t want to move forward with alternatives presented in an EPA-commissioned engineering study.
The issues confronting mountaintop removal, the impacts of that practice on the environment and the people, and finding ways forward for coalfield communities require honest, committed, and thoughtful discussion. Overheated rhetoric that does little but fuel both sides — especially inflaming the anti-government sentiment the coal industry has so strongly encouraged — doesn’t do anybody any good at all.
Sen. Manchin can talk all he wants about trying to find a “balance” between jobs and the environment. Sen. Rockefeller can throw a few words about how EPA “serves a very important purpose to protect our health and water quality” into his press statements. But for either of them to truly help the state move forward on coal-mining issues, they’ve got to both publicly admit that the science shows there are problems with mountaintop removal, and challenge everyone to find ways to address those problems.
Instead, they’re promoting the notion that none of us — least of all government — can learn and grow from our problems or mistakes, that we’ve got to just keep doing the same thing, because that’s the way we’ve always done it. Surely they must both know better than that.