By Luke Popovich
Battle lines between the coal community and the Obama administration were drawn deeper last month with the EPA’s April 1 announcement of new guidelines for valley fill permits. The agency stretched to transform an obscure, partial indicator of water quality into dramatic new scientific evidence justifying a tough new standard for Clean Water Act permits, one that will be all but impossible to meet.
”You’re talking about no, or very few, valley fills that are going to meet this standard,” pronounced one expert on the new guidelines. That would be the EPA’s Administrator Lisa Jackson, whose candid confirmation of the impact thrilled environmental activists and did little to calm the Appalachian coal community’s fears that it’s been targeted for extinction.
Coal people may have been angry and worried but could not have been surprised by the April Fools’ Day announcement. On March 26, in a foreshadowing of what was to come, the EPA fired its latest salvo on the region’s coalfields by rejecting Arch Coal’s Spruce No. 1 permit, issued in 2007, in southern West Virginia. Democratic governors, senators and representatives joined Republicans, unions and coal companies in a chorus of boos. In no time, the EPA showed how easily it can unify this diverse community.
The Spruce mine had been operating under its permit for more than two years, and then only after passing a decade of scrutiny from multiple state and federal agencies including the EPA. The mine’s environmental credentials were secured by a comprehensive environmental impact statement—the only eastern surface coal mine to undergo this rigorous test. Big deal, said the EPA, the agency has taken a different view. The agency didn’t claim the mine violated its permit; it simply changed the rules with a heads-I-win, tails-you-lose maneuver that marked the first time an existing permit had been voided in the 38-year history of the Clean Water Act. The EPA ignored the Corps, which insisted there were no grounds to revoke the permit, and ignored the clear language of the Act, which only grants the EPA veto power over plans before they are issued a permit, not afterward.
As part of the new guidelines, the Army Corps of Engineers is now developing regulations that may require an EIS for all valley fill permit applications—despite a federal court of appeals decision striking down such a requirement in 2009. This left some to wonder about the point of such a costly and time-consuming exercise in today’s regulatory environment. The EPA tried to play down the impact of the new guidelines on current operations and on other industries. But the same mambo-jumbo water quality test selected to invalidate many surface mining permits could also apply to underground mines as well as to other industrial operations, from home building to highway construction. With the potential impact of the new standards so widespread, you’d think the science to support them would be rock solid. You would be wrong; the numeric criteria selected have not been peer reviewed nor reviewed by any official body outside of the EPA. Even the EPA’s data set is unreachable despite many Freedom of Information Act requests.
Given all this, it was not surprising to hear Administrator Jackson quickly disavow any intention to destroy the Appalachian coal industry. It only appears that way, she seemed to say. With this latest announcement, a nagging inconsistency in the administration’s coal policy suddenly becomes a glaring contradiction. This administration says it supports coal as a vital component of the nation’s economy. But everywhere its actions appear to attack coal mining and coal production. How can coal supplies be available for the massive clean technology investments that will be needed if coal cannot be economically produced and burned? We like the high-wage jobs and the low-cost electricity coal provides, the administration seems to be saying, but we don’t like to actually mine or burn the stuff.
In psychology, the phenomenon of appearing to be two different, even contradictory, things is called schizophrenia; in Washington it’s called politics.
Popovich is a spokesperson for the National Mining Association, the industry’s trade group based in Washington, D.C.