But we know most people are silly about coal. They don’t know that coal mining actually starts with a permit from the government. Without a permit, we can stand on a 250-year supply of coal while world markets shout for it, checkbook in hand. We can also promise more high-wage jobs and more tax revenue. But without a federal permit, nothing happens.

And that’s been the problem in Appalachian coalfields since the current administration decided coal is too dirty to use. Not the only problem; coal also faces rising extraction costs that squeeze margins. But these are caused by competitive and geological factors, not by our own government making tough business conditions tougher—in this case, by imbedding costs in federal regulation. The coalfields in Kentucky, Virginia, West Virginia and other Appalachian states just don’t fit in the new renewable fuels agenda that envisions solar and wind powering the U.S. to a clean energy future.

So despite the coal we have in the ground, the demand for it, the first-rate mine engineering expertise here to produce it, the tens of thousands of jobs that wouldn’t exist without it, and the stable costs and reliable supply of coal-based electricity—despite all this—coal is, for this administration anyway, yesterday’s fuel. And the coal mined from the surface is particularly irritating to the political class installed at the EPA. “Are there NO useful jobs these miners can do?” is the question they seem to ask themselves.

Their remedy was to toughen the standards for permit approval under Section 404 of the Clean Water Act, foist the standards on recalcitrant state agencies and veto any permit that the too compliant Army Corps approved. The EPA would set the new permit approval criteria so high that, in the words of the EPA’s administrator, “few, if any” surface mines would be approved. No permit, no surface mining.

But this would require some ingenuity. Namely, how to get around impediments the EPA treated as mere nuisances but the NMA considered important legal requirements? Start with the fact that the Clean Water Act vests primary federal authority for approving valley fill permits with the Army Corps. EPA could veto a Corps’ permit, but only after finding egregious flaws and following detailed procedures. The EPA faced the stubborn fact that Congress gave the keys to this car to the Corps; EPA got the back seat. A second problem is that Congress envisioned state agencies as chief managers of water quality within their borders. They set their own standards. And finally, to veto a permit already approved, the EPA would need a legal miracle because the statute simply doesn’t provide for after-the-fact vetoes.

The EPA thought it had its end-around strategy primed and ready to go when in the summer of 2009 it created a “memorandum of understanding.” This committed federal regulators to conduct an enhanced review of scores of coal permits already in the pipeline. A new “guidance” document, later devised by EPA headquarters, set strict new criteria for permit approval and dispensed with stakeholder input, including the coal community’s meddlesome opinions. In effect, “guidance” would become a surrogate for formal regulation, effectively slapping a multi-year moratorium on new coal operations.

Last winter, the NMA took the EPA to court, asking a federal judge here in Washington to set aside the EPA’s use of guidance, including a whole new set of criteria and procedures for reviewing permits. “We saw it as an unlawful infringement on state authority and a blatantly illegal circumvention of formal rulemaking that requires our voice to be heard,” said NMA Regulatory Lawyer Karen Bennett.

In October, the judge agreed. He declared EPA’s use of guidance in clear violation of the Clean Water Act and the Administrative Procedures Act. Score round one for the NMA. The next round, also to be decided in his court next summer, will decide whether the EPA’s use of new water quality standards is legal or, as Bennett contends, arbitrary and unlawful.

Stay tuned.

 

Popovich is a spokesperson for the National Mining Association, the industry’s trade group based in Washington, D.C.