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We had a story in this morning’s paper about the latest ruling by U.S. District Judge Robert C. Chambers to again confirm that mountaintop removal mining has had devastating impacts on water quality in West Virginia’s coalfields. Meanwhile — in another case that was heard before Judge Chambers — the 4th U.S. Circuit Court of Appeals was handing a defeat to the federal Environmental Protection Agency.
EPA has been fighting to block pending a full appeal a previous ruling by Judge Chambers in a suit in which citizen groups are trying to force federal and state officials to clean up streams that have been contaminated by mining pollution.
Judge Chambers had already refused to stay his own decision pending that appeal, and now the 4th Circuit has likewise refused to grant the Trump EPA a stay.
What West Virginians should really learn from the story of Jim Justice’s big deal with the EPAOctober 4, 2016 by Ken Ward Jr.
Maybe we should just be glad that the U.S. Environmental Protection Agency put out its press release on the water pollution deal with Jim Justice’s companies fairly early on a Friday afternoon, instead of waiting until just before 5 p.m. And oddly, inquiries about this issue were answered far more promptly — and with actual straight answers — than anything else I’ve dealt with the Obama EPA about over the last eight years.
It is a pretty significant story, and it seems hard to imagine it’s not going to quickly become part of the back-and-forth of this year’s gubernatorial campaign. Republican Bill Cole’s people will point to it with statements like this:
@Justiceforwv fined $5m by feds for pollution https://t.co/HgTxYL33iJ. Will he pay the fine or try and stiff taxpayers again? #wvgov #wvpol— Bill Cole WV (@BillColeWV) October 1, 2016
Another example of @Justiceforwv thinking the rules don't apply to him. #wvgov #wvpol https://t.co/L1Z4NpIkJn— Kent Gates (@KentGates) October 1, 2016
Mountain Party candidate Charlotte Pritt’s followers will say the whole thing just shows how Justice is just another coal operator and there’s no difference between Cole and Justice (for those who really are trying to understand if there are differences, former Gazette-Mail political reporter David Gutman gave that story a pretty good shot here).
Just to clear up the facts: The feds didn’t fine Justice $5 million. The fine in this case was $900,000. His companies are required to put up a $4.5 million letter of credit to ensure funding of new pollution control efforts. EPA says in all those efforts will cost $5 million, and Justice has already spent $500,00. So that’s where the $6 million figure in our story comes from. You can read the consent decree here and the EPA complaint here.
It’s fascinating to watch people who are more interested in partisan politics than in environmental protection (or workplace safety compliance) chatter about this particular story on Jim Justice. Where are their cries that the jackbooted thugs from EPA should let little poor ol’ Jim alone? I’m confused — do we want a strong federal enforcement agency to keep coal industry politics from controlling things, or should the feds leave us alone to run things as we see fit?
Readers who follow these things more closely than the career campaign consultants do will know that these kind of settlements between EPA and major coal producers have not been unusual things. EPA has reached deals in recent years with CONSOL Energy (here and here), Arch Coal (here and here) Alpha Natural Resources, and Patriot Coal, among others. And yes, most of the time, the state Department of Environmental Protection takes part with EPA as a co-plaintiff, a move that allows it some say in the litigation and some share of the fine. In this instance, WVDEP could have pocketed maybe $90,000 from the settlement, if the one-half of the fine going to states had been split five ways instead of four.
Going back through those settlements, the only one I see in West Virginia that the WVDEP didn’t take part in was the one back in 2008 with Massey Energy (see original coverage of that here, here, here and here).
Tomorrow is a big day for coal and energy issues, what with the U.S. Circuit Court of Appeals for the District of Columbia set to hear oral argument in the case trying to stop the Obama administration’s Clean Power Plan.
Lots of eyes in West Virginia will be watching, and we’ve covered the implications of this issue before (see here, here and here).
There’s a bunch of stories out there nationally that provide various sorts of previews of tomorrow argument.
The New York Times, for example, takes this angle:
The pitched battle over President Obama’s signatureclimate change policy, which is moving to the courts this week, carries considerable political, economic and historical stakes. Yet its legal fate, widely expected to be ultimately decided by the Supreme Court, could rest on a clerical error in an obscure provision of a 26-year-old law.
That error, which left conflicting amendments on power plant regulation in the Clean Air Act, will be a major focus of oral arguments by opponents of Mr. Obama’s initiative when the case is heard on Tuesday in the United States Court of Appeals for the District of Columbia Circuit.
The initiative, known as the Clean Power Plan, which Mr. Obama sees as at the heart of his climate change legacy, gave the United States critical leverage to broker the landmark 2015 Paris climate change accord. If the plan is struck down, the United States, the world’s largest carbon polluter over the centuries, will lose its main tool to cut greenhouse gas emissions. If it is upheld, it will transform the nation’s electricity system, closing hundreds of coal-fired power plants and setting in motion a wholesale shift to wind, solar and nuclear power, as well as to improved electric transmission systems.
And here’s The Washington Post:
President Obama’s signature effort to combat global warming will be in the hands of federal judges this week, as an appeals court in Washington weighs the legality of the administration’s plan to force sharp cuts in power plants’ carbon emissions and push the nation toward cleaner energy sources.
Even after a marathon hearing Tuesday, the legal questions about the Clean Power Plan are almost certain to remain unresolved when Obama leaves office. But the outcome of the case ultimately could shape the president’s environmental legacy and influence how millions of Americans get their electricity.
“It’s the big kahuna,” said David Doniger, a senior attorney for the Natural Resources Defense Council, which backs the proposal.
The sprawling, unpredictable legal battle — which has attracted attention from the Supreme Court — pits the nation’s leading environmental groups, climate scientists and even tech giants such as Apple against more than two dozen states, industry groups and conservative lawmakers.
There are many others, including pieces from EnergyWire, The Wall Street Journal, and The Daily Caller.
Locally, the Daily Mail editorial page had an op-ed from West Virginia Attorney General Patrick Morrisey, who is among those challenging the EPA rule, and West Virginia Public Broadcasting had a brief preview that included these comments from the AG:
We know that over the last number of years that the regulatory onslaught has play a part in the onslaught of the loss of coal jobs. There are other factors, I would concede, but the regulatory onslaught has been a factor.
It was nice to see AG Morrisey acknowledge the “other factors” that have led to coal’s decline, something we’ve certainly tried to convince public officials to face up to over these last few years (see here, here and here, for example). As with election stories these days, it’s often easy for public officials — and voters — to get away with spouting the coal industry line without ever being confronted by journalists with facts about coal’s decline and the reality of the challenges faced by coalfield communities — even if the AG and his allies manage to win the day in court.
Word out of the U.S. Court of Appeals for the District of Columbia is that the Interior Department has dropped its challenge of a recent lower court ruling in favor of citizens and organizations trying to keep Blair Mountain listed on the National Register of Historic Places.
Department of Justice lawyers for Interior’s National Park Service and the Keeper of the National Register filed this motion to voluntarily dismiss their appeal.
Readers may recall this ruling from April in which a district court judge vacated the Keeper’s decision to remove Blair Mountain from the register.
UPDATED: Here’s a statement from the National Park Service:
The National Park Service decided to accept the district court’s April 11, 2016, ruling and to implement the court’s remand order by revisiting its December 2009 decision to de-list the Blair Mountain Battlefield site from the National Register of Historic Places.
There was an interesting ruling earlier this month out of the 4th U.S. Circuit Court of Appeals in Richmond, in which citizen groups were again blocked in their efforts to litigate against a mountaintop removal mining permit using the growing body of science about mining’s public health effects.
The Jackson Kelley law firm, which represented the mining company in this case, summarized the results this way in a post on its blog:
The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.
On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Coal River Mountain Watch, and Sierra Club filed suit, claiming that the Corps had violated the Clean Water Act and NEPA by not considering a series of studies allegedly linking mining to adverse health impacts.
I’ve posted a copy of the 4th Circuit decision here, and also posted the citizen group brief, the coal company brief, and the Corps’ brief.
Readers may recall that this issue came up before in other cases, one in which U.S. District Judge Robert C. Chambers refused to consider these health studies and another in which the 6th Circuit Court of Appeals sided with the Corps and the coal industry.
Last night, prosecutors filed their brief with the 4th U.S. Circuit Court of Appeals to oppose former Massey Energy CEO Don Blankenship’s request to remain free on bail while appealing his conviction for conspiring to violate federal mine safety and health standards.
Here’s their summary of their argument:
A criminal defendant’s conviction and sentencing bring with them a strong presumption that he will serve his sentence without delay. By his motion to stay his sentence pending appeal, Defendant-Appellant Blankenship (“Defendant”) seeks to evade that presumption. He cites four supposed reversible errors and says his sentence should be delayed because of them. The record reveals, however, that the district court was exceptionally careful and thorough in resolving Defendant’s legal contentions both before trial and during it. Defendant’s appellate claims simply are weak, and success for him on appeal is improbable.
I’ve posted a copy of their brief here.
Also, here’s a copy of a 4th Circuit order that set the schedule for legal briefs in the appeal of Blankenship’s conviction. Initial briefs are due May 31. Remember that, pending action by the 4th Circuit to stay his sentence, Blankenship is scheduled to report to prison on May 12.
As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases
It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”
Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).
So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?
Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.
And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.
Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.
First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:
As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.
Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:
We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.
The latest news on the black lung issue is this:
Coal companies are asking an appeals court to block implementation of the second phase of the U.S. Mine Safety and Health Administration plan for addressing coal miners’ exposure to respirable dust, the cause of black lung disease.
Parties such as Murray Energy Corp., the National Mining Association, Walter Energy Inc. and the Alabama Coal Association are seeking to block implementation of the remainder of the rule ahead of its Feb. 1 rollout date. The rule was unveiled in April 2014 and aims to lower occurrence of black lung, a disease that has been a contributing factor in the death of 76,000 coal miners since 1968.
As that report, from SNL Financial’s Taylor Kuykendall, continues:
The industry argues the rule was unlawfully promulgated without the participation of the National Institute for Occupation Safety and Health. Already, the filing states, the rule has imposed substantial burdens and costs in the form of re-engineering mines, purchasing expensive equipment, training and hiring personnel and new government certifications.
“These costs have hit a coal industry substantially weakened financially even compared to the already-weakened state it was in when the dust rule was promulgated in 2014,” the filing states.
You can read the industry court filing here, and there’s another media report on the issue out in the Herald-Leader:
The coal industry is seeking to forestall new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.
Feb. 1 is the start date for the second phase of the rule. It would require miners to wear continuous personal monitors to check their exposure to dust, and companies would have to do more frequent sampling to check for compliance with dust limits.
Here’s the news from The Wall Street Journal:
A federal court denied a request by more than a dozen states on Wednesday to temporarily block the Obama administration’s carbon regulations while they mount a full legal challenge to the rules.
The decision is an early victory for the Environmental Protection Agency, which completed the rules last month calling for carbon emissions from power plants to be cut 32% by 2030 from 2005 levels. The regulations are the cornerstone of President Barack Obama’s climate plan, and Wednesday’s ruling is an early legal salvo in what is expected to be a yearslong court battle over Mr. Obama’s climate agenda.
West Virginia Attorney General Patrick Morrisey has been leading the legal fight against the EPA rule. You can read the court’s brief decision here.
Patriot Coal is back in U.S. Bankruptcy Court in Richmond, Virginia, today — this time on its motion to be released from its labor contracts with the United Mine Workers union.
As The Wall Street Journal reported, the judge yesterday indicated approval of a plan that could allow a Virginia environmental group to buy some of Patriot’s properties with the intent to reclaim them:
Judge Keith Phillips of the U.S. Bankruptcy Court in Richmond, Va., on Monday said he would sign off on the Sept. 9 auction. An affiliate of the Virginia Conservation Legacy Fund will lead off the bidding with its offer to take responsibility for $400 million in liabilities—workers’ compensation, black lung and environmental—tied to the assets.
The auction proposal had received objections from Patriot’s unsecured creditors’ committee and lender agent Barclays Bank PLC regarding the $5 million breakup fee Patriot sought to offer VCLF should it lose the bidding. However, those were resolved during the hearing with an agreement to require any winning bidder’s offer to provide enough cash to cover the fee.
The VCLF bid, which doesn’t include cash, does feature a pledge to issue new equity to Patriot’s creditors.
This month, VCLF attorney Andrew Troop told the bankruptcy court that through the deal, the nonprofit hopes to balance its quest to reclaim land through reforestation efforts while honoring the region’s tradition of coal production.
“Its desire here is to…reclaim land, operate responsibly, provide some return to creditors who otherwise it looks like would receive nothing or very little in connection with this plan, preserve jobs and enter into a new workable resolution with the United Mine Workers” of America union, he said at an Aug. 18 hearing.
Why doesn’t Don Blankenship want the jury to hear about the Upper Big Branch Mine Disaster?July 30, 2015 by Ken Ward Jr.
Late last Friday, the defense lawyers representing former Massey Energy CEO Don Blankenship filed a motion asking to keep the jury in Blankenship’s criminal trial from hearing any evidence about the April 5, 2010, mine explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.
We published a story that evening online and in the next day’s print edition about the filing, and I’ve posted the court document here.
One of the things I noticed initially about this filing was the little dig Blankenship’s lawyers got in about media coverage of the case:
Not only will every juror know about the UBB explosion, many jurors will bring to this trial the misimpression that this case is about Mr. Blankenship’s responsibility for the UBB explosion. That mistaken belief would have been formed and reinforced repeatedly by the media and interactions in the community. From day one, the local press has covered these proceedings, erroneously, as intended to determine Mr. Blankenship’s responsibility for the UBB tragedy.
The first story cited as an example of this “erroneous” reporting was a piece I wrote for the anniversary of the disaster. It was headlined, “Upper Big Branch 5-Year Anniversary: Blankenship’s trial is focus of families,” and it says very clearly:
While the allegations against Blankenship focus on events at Massey’s Upper Big Branch Mine, in Raleigh County, prosecutors stopped just short of alleging the former CEO was responsible for the deadly explosion.
The other thing I noticed was that, while Blankenship’s defense team doesn’t want the jury to hear evidence about what happened at Upper Big Branch, they go to great lengths to insist that, if the subject comes up, they can convince jurors that Blankenship’s theories that those 29 miners died in a “natural disaster”:
… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.
It does make you wonder why, if their case on the cause of the disaster is so good, Blankenship’s lawyers wouldn’t want to just go right down that road at trial.
It looks like U.S. Magistrate Judge Clarke VanDervort has approved former Massey Energy CEO Don Blankenship’s request to go to Ohio to watch his adult son’s dirt-track race. I’ve posted a copy of the order here.
Among other things, Judge VanDervort noted that U.S. Attorney Booth Goodwin — who has vigorously opposed Blankenship’s request for trips to Las Vegas — did not file an opposition to this particular travel request.
There was a fascinating little line in the opening statement given today by House Education and the Workforce subcommittee Chairman Tim Walberg, R-Michigan, at a hearing where lawmakers received an update on the administration’s mine safety efforts:
Upper Big Branch is a terrible reminder that bad actors will look for ways to cut corners and jeopardize the well-being of their workers, despite a moral and legal obligation to make safety the number one priority. I am pleased that those who had a hand in the Upper Big Branch tragedy are being held responsible. It is taking some time, but justice is being served.
These comments come, of course, as U.S. Attorney Booth Goodwin here in West Virginia prepares for trial on the criminal charges he and Assistant U.S. Attorney Steve Ruby have pursued against former Massey Energy CEO Don Blankenship.
And, the comments — coming from a Republican subcommittee chair in Congress — are particularly interesting, given how Blankenship’s defense team has tried to portray his prosecution as nothing more than an effort by Democrats to shut down a conservative critic.
Regular readers know, of course, that The Charleston Gazette and a collection of other media outlets have been challenging a gag order issued by U.S. District Judge Irene Berger blocking public access to most of the court record in the criminal case of former Massey Energy CEO Don Blankenship.
Well, now we’ve got an interesting new twist on the impacts of Judge Berger’s secrecy.
Since March 2012, I’ve been waiting for the U.S. Mine Safety and Health Administration to get around to responding to a Freedom of Information Act request I filed following the release of MSHA’s “internal review” of its own actions at the Upper Big Branch Mine, where 29 miners died in April 2010. Among the things I was most interested in were copies of the transcripts of the interviews done by the MSHA internal review team.
Well, I got my answer … MSHA says it is withholding those records, citing “an order issued by a United States District Judge prohibiting the release of any documents in the media or any other entity regarding the facts or substances of the criminal case involving Donald L. Blankenship.”
MSHA cites Federal FOIA Exemption 7(A), which it says “protects records of information compiled for law enforcement purposes when production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.” The agency also cited Exemtion 7(B), which it said, “permits the withholding of records or information compiled for law enforcement purposes when disclosure would deprive a person of a right to a fair trial or an impartial adjudication.”
In a similar response to another FOIA — this one seeking information about the agency’s practices regarding enforcement on the prohibition of advance notice of inspections — MSHA again cited the gag order in the Blankenship case.
There’s an important story coming out of Kentucky this week that will be of interest to anyone who has followed the water sampling scandals here in West Virginia (see here and here) — or anybody who has just wondered why so much of our water pollution enforcement process is based on industry self-reported data. Here’s the press release from Appalachian Voices:
Over the course of 2013 and 2014, Frasure Creek Mining – one of the largest coal mining companies in Kentucky – sent the state false pollution reports containing almost 28,000 violations of federal law, and the Kentucky Energy and the Environment Cabinet failed to detect the falsifications, according to a letter of notification served to the company by four citizen groups. It was the second time the groups have taken legal action against Frasure Creek for similar violations.
In a 30-page notice of intent to sue mailed Friday, the groups document that Frasure Creek duplicated results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits. With a potential fine of $37,500 per violation, the maximum penalty could be more than $1 billion.
The Courier-Journal in Louisville explained:
This all comes, of course, as Sen. Mitch McConnell has accused the U.S. EPA of a war on coal, and promises his own war on the EPA, and as the EPA denies any war on coal — and, according to journalist Ronnie Ellis, some Kentucky citizens are arguing that it’s the coal companies that are waging the war … a war on the health and environment of Kentucky.
And, the C-J’s Jim Bruggers noted this response from Kentucky officials:
Contrary to inaccurate and inflammatory statements directed at the Cabinet … the agency has been actively monitoring compliance with Frasure Creek and other coal mining operations in Kentucky. Since 2011 the Division of Enforcement has reviewed approximately 179,000 (discharge monitoring reports) involving 78 coal companies and over 2,200 mining permits, assessed civil penalties in excess of $3,697,000, and has entered into 67 enforcement settlements with coal companies in Kentucky. The agency has and continues to proactively review and take appropriate enforcement actions to resolve violations identified during the inspection and review of coal mining operations.
We’ve covered previous discussion of the Kentucky situation here, and there’s a good summary of the background here, but this time, the story also made The New York Times:
In a state where coal-country creeks run red with iron, Frasure Creek Mining has been unusually clean of late: Amid tens of thousands of measurements that it submitted to Kentucky regulators in 2013 and early 2014, fewer than 400 exceeded the state’s limits for water pollution from coal-mine runoff … The disclosure could embarrass the state, not least because environmental activists caught Frasure and two other coal companies in the same scheme in 2010. Then, regulators promised to tighten their scrutiny of pollution reports and the laboratories that conduct pollution tests.
There’s an interesting order out from the 4th U.S. Circuit Court of Appeals concerning a significant mountaintop removal case. In it, a three-judge panel refuses a request from Alpha Natural Resources that the court consider an immediate appeal of U.S. District Judge Robert C. Chambers’ ruling in part of a case over conductivity pollution from Alpha operations.
Some readers may recall the initial June ruling, which we reported this way:
Citing what he said was “extensive scientific evidence,” a federal judge has ruled for the first time that conductivity pollution from mountaintop removal mining operations is damaging streams in Southern West Virginia.
U.S. District Judge Robert C. Chambers concluded that mines operated by Alpha Natural Resources in Boone and Nicholas counties have “caused or materially contributed to a significant adverse impact” to nearby streams, giving citizen groups a major victory that also supports Obama administration efforts to reduce mountaintop removal impacts.
In a 67-page ruling issued Wednesday, Chambers found that mining discharges had not only altered the chemistry of the streams, but also “unquestionably biologically impaired” them, leaving both the diversity and abundance of aquatic life “profoundly reduced.”
“Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine,” the judge wrote.
“As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes ― functions,‖in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses,” Chambers wrote. “Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”
As we noted in that story:
Chambers ruled after a two-day trial in December. He found that the coal operations had caused water quality violations, but has not yet decided what sort of penalty or other injunctive relief he will order.
Alpha lawyers tried to appeal just what Judge Chambers had ruled on so far, but the 4th Circuit refused to hear that appeal. A trial is scheduled to start on Dec. 2 on what sort of penalty or injunctive relief is appropriate.
Big news today out of the U.S. Court of Appeals for the District of Columbia: A three-judge panel has given the federal Environmental Protection Agency another victory in the agency’s efforts to combat water pollution from mountaintop removal coal mining.
You can read the decision here. Basically, the court held that EPA and the Army Corps of Engineers had legal authority to set up an Enhanced Coordination Procedures for reviewing Clean Water Act permits for mining operations, and that the EPA’s conductivity pollution guidance was not a final rule subject — at least not at this point — to legal challenge.
The decision throws out an earlier ruling by U.S. District Judge Reggie B. Walton, who had sided with the National Mining Association and the state of West Virginia, among others who had sued EPA to block the agency’s anti-pollution efforts.
Today’s decision was written by Judge Brett M. Kavanaugh, and the other members of the panel were Thomas B. Griffith and Sri Srinivasan. Kavanaugh and Griffith were appointed by President George W. Bush, and Srinivasan by President Obama.
Readers may also recall that efforts to overturn the EPA’s veto of the Spruce Mine permit, while initially successful, were later tossed by the D.C. Circuit.
EPA press secretary Liz Purchia issued this prepared statement about the ruling:
EPA is pleased that the Court of Appeals agreed with our position in this case. We are committed to consistently using our authority under the Clean Water Act to protect the health and environment of Appalachian communities. The Agency is working with the states, mining companies, other stakeholders and the public to enable environmentally responsible mining projects to move forward.
Citizen groups have also issued a statement, available here.
Murray Energy President Bob Murray certainly is willing to use the legal system when he feels he’s been wronged. So the latest report from The Associated Press is probably not that big of a surprise:
A leading U.S. coal company is suing a rival with which it shared confidential business plans during a deal that later fizzled, saying the competitor used the proprietary details to buy up land in southern Illinois to thwart the accuser’s expansion plans.
Murray Energy Corp., a privately held Ohio-based company with operations in Utah, alleges in a lawsuit Saline County, Illinois, that Williamson Energy LLC breached terms of a confidentiality agreement in 2008 when Murray was trying to sell it operations in the southern Illinois.
The story explains:
Under the agreement, the lawsuit claims, Williamson pledged not to disclose or use any of Murray’s confidential information to acquire mineral or property rights related to Murray’s operations for eight years.
Murray claims Williamson has done just the opposite since 2009, buying cherry-picked parcels and mineral rights at above-market prices — in some cases, four times the going rate — “directly in the path” of Murray’s mining operations. Murray alleges it planned to buy or lease those tracts, that the parcels are too small to offer mining potential to Williamson, and that Williamson bought the land “to hinder MEC’s operations to gain an unfair competitive advantage.”
Oddly, what AP reporter Jim Suhr doesn’t seem to have explained — at least in none of the versions of the AP story I’ve seen — is that the target of Murray’s lawsuit, Williamson Energy parent company Foresight Energy, is owned by another fairly colorful coal operator, West Virginia native Chris Cline (see here, here and here).
I’ve posted a copy of Murray Energy’s press release about lawsuit here and you can read the full complaint for yourself here.
Supreme Court gives EPA ‘amost everything it wanted’ in latest ruling on greenhouse gas pollutionJune 23, 2014 by Ken Ward Jr.
There’s another big decision out this morning from the U.S. Supreme Court on climate change, and you can expect to see some West Virginia officials touting it as more proof for their argument that the federal Environmental Protection Agency is out of control … but before you buy that, it’s worth actually paying attention to what the decision says and what some of the media coverage of it is explaining.
Sure, as some of the headlines are saying, the Supreme Court limited EPA’s authority in writing rules to restrict carbon pollution. But read on, for as this story from Bloomberg explains:
The U.S. Supreme Court partially upheld one of President Barack Obama’s early efforts against climate change, saying the Environmental Protection Agency had authority to impose new permitting requirements on some power plants and factories.
The permitting rules apply when facilities are built or expanded. They are separate from the administration’s more comprehensive climate-change regulations, including the plan released June 2 to cut carbon emissions from existing plants by as much as 25 percent over 15 years.
The Supreme Court gave the EPA a preliminary victory in October, refusing to consider arguments that would have barred the agency from addressing climate change at all. That left states and business groups fighting the permit rules, which they said may ultimately affect millions of facilities, including bakeries and apartment complexes.
Today’s ruling, which splintered the court, may head off that possibility, limiting the rules to a few hundred facilities that already have to get permits for other pollutants. The justices said greenhouse-gas emissions by themselves can’t serve as the trigger for a permit requirement.
Or, as The Washington Post pointed out:
Justice Antonin Scalia, writing for the court, said “EPA is getting almost everything it wanted in this case.” Scalia said the agency wanted to regulate 86 percent of all greenhouse gases emitted from plants nationwide. The agency will be able to regulate 83 percent of the emissions under the ruling, Scalia said.
Some readers may recall that West Virginia Gov. Earl Ray Tomblin and Attorney General Patrick Morrisey made quite a big deal about their filing of a “friend of the court” brief in the case. But this ruling is hardly the kind of major defeat for EPA that those politicians are looking for. Here’s the New York Times:
The Supreme Court on Monday handed President Obama’s Environmental Protection Agency a victory in its efforts to regulate greenhouse gas emissions from stationary sources like power plants … States and industry groups challenged the regulations on many grounds, with the U.S. Chamber of Commerce calling them “the most burdensome, costly, far-reaching program ever adopted by a United States regulatory agency.” The Supreme Court limited the issue it would consider to whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.”