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Compelling Regulatory Agencies to Expose the Dirty Side of Coal by Mackenzie Lawson

Posted by: | November 26, 2012 Comments Off on Compelling Regulatory Agencies to Expose the Dirty Side of Coal by Mackenzie Lawson |

“Clean coal.”  Much of the U.S. energy industry has adopted this oxymoronic slogan in an attempt to support a power source that is under attack for its harmful environmental and public health effects.  In our “green” age, the ugly side of energy needs to be forgettable, so a $35 million a year ad campaign has magically transformed coal’s properties.  And ta-da!  Now we have a buzzword that the country can’t stop passing around.  However, the term “clean coal” needs a lot of clarification.  We need agencies to help clarify this term by exposing and reducing the extremely unclean side of coal.

“Clean” refers mostly to the emissions of coal-fired power plants, but the more accurate term would be “cleaner.”  Yes, the types of coal we currently extract have properties that make it burn more efficiently than other types.  And yes, coal-fired power plants now have boilers and scrubbers that help reduce emissions.  Nevertheless, the phrase “clean coal” largely ignores the process needed to get the coal to the plant: mining is left out of the equation.

One of the best ways to debunk the “clean coal” myth is to place more focus on the consequences of mining operations.  This heightened attention needs to be visible in agency actions, specifically approval of mining projects and promulgation of regulations governing the industry. Coal will not seem so “clean” when it becomes clear that mitigation cannot fully compensate for the extensive damage caused by mining.

Science proves that coal extraction is still dirty and very harmful.  This is especially true of surface mining, which is practiced extensively in Appalachia.  During this type of mining, tops of mountains are blasted off to expose coal seams below.  The overburden from the mountain, which is full of heavy metals like arsenic, barium, cadmium, and chromium, ends up covering streambeds in valleys between the mining sites.  Metals then comingle with the water supply, causing contamination of both public and private water sources.  Consequently, recent studies link proximity to mountaintop mining operations to birth defects, low birth weight infants, childhood learning deficiencies, adult tooth loss, increased rates of disease, and higher mortality rates.


The U.S. Army Corps of Engineers (Corps) and other agencies issuing permits for mining should consider these new scientific studies when determining how projects will affect the public.  Application of the studies can be easily integrated into current statutory requirements.  For example, under the Clean Water Act (CWA) § 404(b) Guidelines, the Corps must not issue a § 404 permit if a project will “cause or contribute to significant degradation of the waters of the U.S.”  40 C.F.R. § 230.10(c).  This significant degradation analysis must consider significant adverse effects on human health or welfare.  40 C.F.R. § 230.10(c)(1).  Therefore, under this requirement, the Corps may determine that a mining project will cause effects pronounced in the studies.  In that case, mining should be abandoned or mitigation techniques that have been proven effective should be required (though it is highly questionable whether these techniques exist).  By recognizing that contamination does occur and requiring effective prevention, or possibly, mitigation of that contamination, agencies can expose the unclean side of coal.

Courts will likely need to require agencies to use these studies as a part of their public interest reviews under environmental statutes since agencies are unlikely to do so voluntarily.  Unfortunately, thus far, courts have no gone so far as to make this mandate.  In January 2012, a U.S. District Court judge in West Virginia refused to allow public interest environmental groups to use scientific health studies in their challenge of a Corps-issued permit for a proposed surface mine in Logan County, West Virginia.  When issuing the permit, the Corps concluded that the project would not have any anticipated human health effects.  At the time of issuance, the Corps was allegedly unaware of the results from the scientific studies.  These kinds of agency decisions are a serious hindrance to realizing coal’s “dirty” effects.

In this particular case, however, timing seemed to be one of the main reasons that the court did not require the Corps to reconsider its National Environmental Policy Act (NEPA) analysis by including evidence from studies showing adverse health effects.  By the time the supplemental complaint was filed, the Corps had already completed NEPA obligations and had issued the mining permit.  The court found that the agency could not act arbitrarily and capriciously unless it had a reasonable time to consider the new information, and in this case the Corps did not receive that time.

Even after this suit, the Corps has not yet changed its practices, and it continues to find that mining projects result in “no significant impact” to the environment and public health.  Therefore, the use of scientific studies as leverage to halt or mitigate mining’s adverse impacts should be revisited.  As the agency continually fails to include public health effects in its decision-making before issuing a permit, citizen groups should challenge every decision possible.  Hopefully these challenges will compel Corps offices throughout the Appalachian region to consider studies before issuing permits in reliance on incomplete public interest review analyses.

In addition, coal’s dirty effects need to be addressed on the national level through agency implementation of stricter regulations.  Because current mining regulations are inherently weak and not sufficiently enforced, the U.S. Environmental Protection Agency (EPA), in particular, must continue to push for stricter regulations, even in the face of court decisions striking down its efforts.

Over the past few years, EPA’s efforts to change the mining process through increased regulation have been met by industry opposition.  In 2011, the National Mining Association (NMA) brought suit against EPA for its proposal to more closely analyze permits for waste piles from mountaintop removal.  The District of Columbia U.S. District Court ruled in favor of NMA by finding that EPA overstepped its bounds from its allowable limited involvement in the issuance of CWA § 404 permits.  The court read the CWA as unambiguously limiting EPA’s role as secondary to the Corps, which is the principal player in the permitting scheme.

This July, in another suit brought by NMA, the same court threw out EPA guidance aimed at reducing water pollution from mountaintop mining through tougher permit application review.  The court found that the guidance infringed on states’ authority to implement their own pollution control programs and that EPA impermissibly interjected itself into the Surface Mining Control and Reclamation Act (SMCRA) permitting process.  Fortunately, EPA, along with several environmental groups, recently made the decision to appeal this ruling and to fight for agency power to correct mountaintop removal harms.  The agency is not challenging the procedural rulings but is asking the court to reverse the decision setting aside the guidance and the finding that EPA overstepped its authority.

While EPA made the correct decision to appeal the ruling discussed above, the agency still needs to do more to correct the clean coal myth.  These recent court decisions are essentially telling EPA to write binding regulations to control surface mining, and EPA should do just that.  The first D.C. Circuit ruling indicates that if the agency wishes to make changes to § 404 permitting, it must engage in notice and comment rulemaking.  The most recent D.C. Circuit case disposing of EPA’s guidance suggests a similar conclusion: EPA must engage in formal rulemaking instead of working within guidance documents.  EPA must be cognizant of its statutory boundaries and it must work within its authority to make its regulations permanent and binding.

The myth of “clean coal” needs to be understood for what it is: a slogan intended to anchor the coal industry’s propaganda campaign against the American public.  But what the public really needs is agency oversight that gives real consideration to the impacts of mining, the overlooked part of the coal.  If the country wants to continue to embrace the term “clean coal,” our regulators must use science to make permitting decisions while continuing to push for stricter regulation.  Only after these steps have been successfully taken, should coal be allowed anywhere near the word clean.

under: Energy

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