*As seen in the July issue of Coal People magazine. The entire publication can be found on www.coalpeople.com.
"You seem to be pleased about it."
"Don't I have good reason to be?"
"But, after all, I did break one of your laws."
"Well, what do you think they're for?... Do you really think we want those laws to be observed?...We want them broken…. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them."
Atlas Shrugged, by Ayn Rand (1957).
* * *
For some time now, there has been a well-organized effort to severely restrict, if not abolish, coal mining in West Virginia. Up until the last two to three years, this movement has been led by groups such as the Ohio Valley Environmental Coalition (OVEC) and other regional groups whose members include at least some West Virginians. Recently this highly coordinated campaign has been expanded, as national groups such as the Sierra Club, EarthJustice, and others have joined. Apparently these groups hope their efforts will not only protect local residents from environmental harms caused by mining, but also help to bring an end to carbon dioxide emissions from coal-fired power plants, by making coal more difficult to mine.
The focus of this effort -- and most all of the major court cases -- has been on the issuance of so-called "dredge and fill" permits under Section 404 of the federal Clean Water Act (CWA) for mountaintop mining operations (though such permits are also needed for underground coal mines and other types of operations). The Section 404 permit program is administered in West Virginia by the U.S. Army Corps of Engineers (Corps), but EPA retains the authority to review 404 permit applications to ensure compliance with its "404(b)(1) Guidelines" developed specifically for that program.
All of this is well known. The existence of an orchestrated movement against coal is beyond debate. Moreover, most people do not question the right of any individual or group to voice their position on the issue of whether 404 permits ought to be available for coal mining operations. What is questionable are the repeated claims made by coal opponents that the fight to deny 404 permits for coal operations represents an effort to force mining companies to 'comply with existing laws.'
Even a cursory review of the most recent decision in this long line of cases (OVEC v. Aracoma Coal Company, issued by the U.S. Court of Appeals for the Fourth Circuit on February 13, 2009) reveals otherwise. The coal companies whose 404 permits were challenged in that case did nothing in violation of any law or regulation in applying for those permits or in taking steps to place fill in designated areas. Indeed, though the plaintiff groups made a number of allegations regarding the Corps' failure to take a close look at the water quality and aquatic consequences of those projects, the Appeals Court specifically found to the contrary. In the words of Circuit Judge Gregory, the Corps used its "best professional judgment for assessing the structure and function of the affected aquatic ecosystem," and its decisions "addressed the required considerations under the Guidelines."
What happened next? Within days, reports surfaced of efforts to have the Obama Administration's EPA impose either a moratorium or a substantially lengthened review period (hold) on each and every 404 permit application that had been pending in the Corps' Huntington District office. Processing of almost all of those applications had been suspended solely because everyone was awaiting the Fourth Circuit's decision. However, when that decision was finally issued -- telling us all what the law is -- the response by coal's opponents was to seek other ways of stopping those projects despite that ruling. This does not reflect an effort to force coal companies to comply with the law. It is instead, indicative of an effort to stop coal mining in West Virginia regardless of the law.
Further, news reports and editorials have suggested that before the Fourth Circuit's ruling in Aracoma, EPA was not involved in reviewing mining-related 404 permit applications at all. That is simply incorrect. Again, even a brief review of the opinions in any of the 404 permit cases that have been filed over the last eight years makes this clear. EPA has long been involved in reviewing 404 permit applications submitted to the Corps, and particularly those seeking approval for coal projects. It has raised questions, offered comments, suggested different ways of addressing issues, and expressed its views as to whether particular permits should be issued.
What makes this most recently initiated review process different is that it seems to reflect a significant disregard for the other Federal and State environmental programs that are an integral part of the permitting process for a coal mine. For example, from the EPA letters that have been publicly released, it appears that in some cases the agency may decide to ignore the post-mining land use that has been approved in the course of issuing a State mine permit, and may disregard a State's own determination that its water quality standards will be adequately protected. Moreover, because coal company applicants are forced to comply with ever-evolving interpretations of the Guidelines, the meaning of certain key terms is in the eye of the administrator (here, EPA), and can shift. This means that what was acceptable yesterday may become a 'violation of law' today.
It is almost as if someone wants the law to be broken.