The Register-Herald, Beckley, West Virginia

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April 24, 2013

Ruling angers lawmakers, industry

An appeals court’s edict that says the U.S. Environmental Protection Agency acted properly in yanking a coal mine permit after it was issued came under immediate fire Tuesday by Rep. Nick Rahall and the West Virginia Coal Association.

Rahall suggested the ruling by the U.S. Court of Appeals for the District of Columbia could have a domino effect and disrupt production not only in his home state but elsewhere across the industry.

“I think that’s absolutely true,” Bill Raney, president of the coal association, said.

“This is the last thing we needed. The state has been getting things together with permitting and creating certainty. EPA has always been the stumbling block and not for any reason, other than I think they just want to be a nuisance to slow down production.”

Raney likened to the hypothetical scenario in which the Division of Motor Vehicles, without cause, suddenly pulls a West Virginia’s license to drive.

“It would be the very same thing,” he said.

“You haven’t done anything wrong. You’re acting like a halfway civil individual and the DMV just decides they’re going to take your driver’s license. They just come in and take it.”

Legal wheels began spinning in January 2011 when the EPA pulled a permit the Army Corps of Engineers had given to St. Louis-based Arch Coal four years earlier for a mountaintop mine subsidiary operating in Logan County.

To justify its reversal, the EPA claimed practices in force at the 2,300-acre installation known as Spruce No. 1 would harm the environment to the point of no return and put human health at risk.

In Tuesday’s ruling, the appeals court called on the lower jurisdiction to address the industry’s claim that the EPA action was “arbitrary and capricious” and violated the Administrative Procedure Act.

“Today’s decision would open the floodgates to disrupting coal mining in West Virginia and elsewhere by granting the EPA unprecedented and seemingly limitless authority over Clean Water Act 404 permits,” Rahall, D-W.Va., said in a statement.

Rahall warned that the ruling would hand the EPA a license to revisit any such permits any time the administrator feels like it and totally void them.

“This decision undercuts the Clean Water Act authority vested by Congress in the Corps of Engineers and would upend the traditional balance that has existed between the states and the federal government in the permitting process,” the 3rd District congressman said.

Rahall vowed to revive legislation known as the Clean Water Cooperative Federalism Act to keep EPA from “using the guise of clean water as a means to disrupt coal mining” as it has done with the Spruce No. 1 permit.

But Craig Segall, staff attorney for the Sierra Club, said the court left no doubt that the industry cannot “derail” the EPA in its bid to halt the dumping of toxic materials into streams.

“More than half of all toxic water pollution in the country comes from coal plants and the existing laws do not cover the worst of these pollutants,” Segall said.

“After 30 years of delay, the EPA will be able to stay on track and finally update these vital water pollution standards, saving American lives and preventing our children from getting sick.”

Michael Senatore, vice president of Conservation Law at Defenders of Wildlife, said the ruling allows EPA to provide rules that address water spoilage caused by coal-fired power plants.

“Once finalized, these regulations should help protect aquatic wildlife from the harmful effects of coal-fired power plants,” he added.

The ruling also came under fire from Rep. Shelley Moore Capito, R-W.Va., who called it the “wrong one” and predicted hardships for working West Virginians.

“The EPA has continued to overstep its bounds in its efforts to implement the president’s anti-energy policies,” she said.

“Not only will this ruling cost West Virginia hundreds of jobs, but it begs the question: Who is safe? If the EPA can take back a permit from a coal mine in West Virginia, they can do the same to any business in America.”

Capito added, “I will continue to fight tooth and nail with this administration on its job-killing policies and I condemn the court’s devastatingly misguided decision.”

Sen. Joe Manchin, D-W.Va., called the decision “yet another example of bureaucracy at its worst: One agency grants a permit, another agency takes it away, and business suffers in the end.”

“The federal government should be an ally, not an adversary, in helping to strike a balance between protecting the environment and creating good American jobs,” Manchin said.

“For too long the EPA has been waging a destructive war against Appalachian coal mining and it is costing countless American jobs and investment. If we are ever to going to recover from our fragile economy, American businesses must have certainty in the market place.”

Raney termed the latest court decision “a real shame” and can only further cloud the mining permit process.

“That just perpetuates that uncertainty that we felt we were beginning to get a handle on, that people could begin to make investments and have a little bit of confidence in the system,” the coal association president said.

Raney and many political leaders in West Virginia, among them Gov. Earl Ray Tomblin, have been at loggerheads with the EPA for several years now, terming the on-going clash a “war against coal.”

The latest legal decision has revived “this constant threat that if EPA doesn’t like something, supposedly it has legal authority to just take the permit.”

“It doesn’t have anything to do with your performance,” Raney said.

“It has nothing to do with the way you’re behaving on your permit, the way you’ve conducted your operations. It’s just they’ve decided they want to take it.”

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