WASHINGTON, D.C. — A federal appeals court Friday ruled the federal EPA has not overstepped its authority with a program where it coordinates with the U.S. Army Corps of Engineers to further review mountaintop removal coal mining permits.

West Virginia, Kentucky, coal companies and others have been challenging what’s called the Enhanced Coordination Process claiming it makes it nearly impossible for coal companies to receive a Clean Water Act permit for mining under the program. The EPA began using the additional review in 2009.

A federal judge ruled in 2012 the EPA had gone too far but the appeals court overturned U.S. District Judge Reggie Walton’s decision Friday saying the two agencies, EPA and Corps of Engineers, have the authority to cooperate on the reviewing of the permits. The EPA cited nearly 80 permits for further review in 2009.

The appeals court sent the case by U.S. District Court to dismiss the claims of the plaintiffs.

Gov. Earl Ray Tomblin reacted Friday evening expressing concern about future attempts to gain permits.

“While we certainly appreciate the Court’s view that the EPA’s ‘guidance’ lacks the force of law, and that West Virginia has the regulatory power regardless of EPA’s viewpoint, EPA’s actions at the time strongly indicated otherwise. In addition, we have great concern that continued ‘enhanced coordination’ between the EPA and Army Corps of Engineers could create an endless regulatory loop that adversely affects the ability to issue permits. We, in consultation with the other litigants, will continue to explore our legal options after additional review of the ruling.”

The environmental community praised the decision. Cindy Rank of the West Virginia Highlands Conservancy took satisfaction in the ruling.

“As baffling as it was that the Mining Association and representatives of several state governments challenged the effort by EPA and the Corps to agree upon a process by which they work together on permitting actions, it is ever so much more gratifying today that the appeals court affirmed the legality, not to mention the wisdom, of such interaction,” Rank said.

bubble graphic

43

bubble graphic

Comments

  • Tim C

    I wish the environmentalists would take pictures of a reclaimed mountain top project instead of only wanting to publicize active strips. The land is returned to a productive use and is a Mecca for wildlife such as deer, elk (in Kentucky), bear, rabbit and a whole host of others. I'll bet you couldn't convince people it's so bad if you showed the public the before and after pictures.

  • MOCO man

    Not too crazy about tearing our mountains to shreds.......leave it for the UG guys. We are the mountain state but yet rip the tops off of every mountain for a little pinch of coal............go EPA!!!

    • Aaron

      Like conchop, another completely inaccurate comment. Is the truth really that hard for you guys?

  • northforkfisher

    It's sad that we destroy land for strip malls, more business, and want ever else permanently, but can't mine coal that has to reclaim the land. After the initial runoff, the reclaimed mines return to productive land for nature and humans, the development of the land causes more runoff, with oils, other toxic materials. The blacktop that is laid down puts off more heat and helps raise the temperature.

  • conchop

    The entire world is coming to the conclusion that AL GORE is correct in his assessment of the damages that coal does all over the world.

    This decision allows the EPA to regulate water and, just a short time ago, they can now regulate carbon. Natural gas is coming on line and replacing coal at an ever increasing pace. What could possibly go wrong in the coal fields???

    The solar industry is now employing more workers than the mines are employing miners. New battery technologies are leaving the labs and entering the markets. Full spectrum solar is on the horizon and will make power night and day. What could possibly go wrong with the "FRACKERS" ???

    Do you really think the world could care less about the jobs that are about to be lost in the mine fields??? The words, "stranded investments" are being used in many boardrooms when the discussion turns to coal. That's where the rubber hits the road because those boardroom boys only think of their 1% Conservative Masters, not their mine workers.

    I would think that when the coal fields wake up to their new reality, alternative plans for their society could be made. Otherwise, there will be tremendous loss for the folks that live there. But I don't see much of that foresight with these area's. Instead, it's another opportunity to have "Obama's EPA war on coal #2".

    WV is about to go through a change. Like it or not, change is on the way and your prior way of life is about to change with it. Plan accordingly or suffer the consequences ....

    • ViennaGuy

      - Full spectrum solar is on the horizon and will make power night and day. -

      Really?

      Then please explain to those of us less enlightened than you how a solar energy facility can collect energy from the sun when the sun isn't out. And I don't want to hear about those so-called "hybrid" solar facilities, spinning generators with compressed air stored in caves, storing heat, or storing power in batteries/capacitors during the day, because those systems are inefficient compared to conventional generation, extremely costly, impractical to implement for large-scale baseload generation, and impractical for many locations.

      Personally, I have no issues with solar power itself, other than it should not be receiving taxpayer subsidies; it should stand on its own two feet like anything else. The pro-solar crowd has been preaching since the 1970s that solar is ready for prime time but isn't being used due to a cabal of the oil companies, the coal companies, the natural gas producers, and the utility companies. The fact remains that if solar was a practical replacement for conventional generation, the utility companies would have begun switching to it years ago because it would have reduced their costs and increased their profits. It has also started to come out that solar power isn't as environmentally friendly as some would like to claim, too.

      Conchop, I would like to ask you if you have a background in the hard sciences because if you do, you'd already know that carbon is absolutely essential to live on Earth. Without carbon, there would not be ***any*** life on Earth - not you, not me, not any people, plants, animals, fish, nothing. This notion that carbon is killing us is contradicted by scientific fact, despite what Al Gore says (and Al Gore is unequivocally not a scientist).

      • conchop

        Google up the electromagnetic spectrum and full spectrum solar operational parameters. Just for grins and giggles, look up Tesla's Colorado Springs experiments. You'll find that today's solar panels operate with the "visible light" spectrum. When you hear the words "full spectrum", it includes wavelengths that include infrared - X-rays - ultraviolet, etc etc - those wavelengths are always on, night or day. Tesla and others have harnessed cosmic rays, which offer unlimited energy.

        What you said about carbon is only half true as you disregard irrefutable scientific fact regarding overloading our atmosphere with carbon.

        My academic and scientific background consists of being one who is absolutely no one from absolutely nowhere in rural WV. That's all the credentials I need to deal with anyone.

    • The bookman

      Conchop,

      The rubber meets the road when the dream state in which you and others seem to exist meets the reality that technology and infrastructure does not provide for your dream to be reality in the short term. Any long term government projection has coal and NG playing the dominant role for decades to come with regard to our electricity generation needs. Plain and simple. At some point, some level of recognition of those facts will overwhelm the dream, causing you and your faction to awaken. See Germany, who after going all in on solar and wind, are now bringing more and more coal online to meet the base load demand of their economy. All of the above energy strategy! Now, say it with me, all of the above energy strategy! C'mon, you can do it!

      • conchop

        Oh, I'm right in there with the "all of the above" energy strategy. Gen. 4 Nuke plants seem to be a quite smart way to make power. The resurrection of Tesla's and Moray's cosmic ray power generation seems to be extremely advisable, but historically, that invites the curse of Prometheus, as it is hard to charge money for such easy and unlimited power. Cold fusion is real; and suppressed. Elemental rod generators are amazing; and suppressed. Full spectrum solar and new battery technologies will offer an untold opportunity for independent and reliable energy production. I like the self sufficiency that this technological package offers. [ Lets just see who is the real conservative ]There are very many labs working on a wide variety of clean and efficient energy production technologies. It really is an exciting time to be one of those "extreme left wing, tree hugging, blah blah blah socialist elitists" innovators.

        Looking at the big picture and the mathematics, Al Gore and the scientists he has collaborated with have, changed the national consciousness with truthful and accurate assessments of the situation on the ground. Efforts are now underway to make change. You guys who have been lackeys for the Conservative Coal Camp Climatology Church Club have wasted valuable time and money in delaying the transformation and renovation of the economy and society in WV's coal fields. Your monied Conservative Elitist Masters like it that way and they will do and say anything to prevent their investments from becoming stranded. They could care less about your investments in your communities.

        It's all about efficiency and cleanliness. As this thread started over the EPA's ability to mandate clean water, not to mention carbon, it's clear to see the energy projections will more than likely change - especially since the carbon fuel industries show very little inclination to be clean. Perhaps it would help if advocates of the carbon fuels industry would try their best to be clean. Yeah. right!

        Nonetheless, it would be wise and logical for WV to begin a truthful, Socratic self examination of our position in a new future. Sure, coal will be mined and gas will be piped, but it won't be what you imagine it will be. Too many of these new technologies will perform far better, cleaner, and cheaper.

        Plan accordingly ...

      • ViennaGuy

        +1 bookman. I'm all for an all-in energy strategy. We need all of it, not just this or that.

      • Hillboy

        Germany could have pulled off being a low-carbon economy except they also ill-advisedly decommissioned their nuclear plants. Everybody talks about all of the above energy strategy but nuclear seems to be the forbidden topic. Yes, solar and wind would be hard-pressed to provide a huge chunk of the base load. But nuclear should also be on the table.

        • Aaron

          I agree completely. In my mind, if we are going to invest significant money in energy research, nuclear should get the bulk of it as it the one source that can replace fossil fuels.

          • The bookman

            Completely agree!

      • Debra

        I agree. All forms of energy should be used, but until we are forced to utilize all forms of energy and technology "including carbon capture" we will continue on the same old path.

        • The bookman

          Great! Let's explore the possibilities of CCS, but we can't mandate an unproven technology before we've solved the problems surrounding it. All for innovation and progress. All of the above!

          • Debra

            True, but we can subsidize the development of CC just like we did fraking.

    • Debra

      Amen. These jobs are going away. You can kick, scream, cry, protest, or except the truth and reeducate yourselves for a new line of work.

      • Aaron

        They're going away until we need coal again and then they will return. Like it or not, the EIA projects electricity produced by coal to remain constant for the next half century while renewable energy sources are only expected to increase from 12% of generation to 16% of generation.

        The ONLY reason coal will slip from our number 1 source to number 2 source is because energy produced by gas will increase to meet needs while coal remains constant.

        • Debra

          True on the gas front. But I think renewables will increase more than you believe. So, those coal miners need to look for jobs in the gas field.

          • Aaron

            That's not what I believe Debra, those estimations come from the EIA.

            And it's not as simple as looking for careers in the gas field as they are completely different technologies.

            I'm curious though, do you thing that once environmentalist have shut down MTR mining that they will leave fracking alone?

          • The bookman

            The future in this region of the nation is certainly NG, but coal will remain a major source of electricity generation into the next several decades. Met coal will still be needed for the steel that drives growing economies. If I were a miner, I'd retrain into the gas fields and move to North Central WV. I certainly wouldn't lose everything I had in the hopes a pragmatic administration will be elected in 2016. But make no mistake, the remaining recoverable carbon in the ground will eventually be utilized. There are no real alternatives to it, at least in the short term, to replace it. That is a fact based assessment, not a political opinion.

    • Aaron

      Solar produces 1/10th of 1% of all US Electricity. Long term projection have it producing as much as 1/2 of 1% in 40 years. Had you not hung your hat on a technology that simply is not a viable alternative to any energy source, it might have been credible.

      • conchop

        Have your salt and pepper shaker handy - won't be long until you're eating your hat ...

        • Aaron

          I would love it if you're right because contrary to liberal beliefs, conservatives are not anti-renewable, pro-earth destructionist who eat small, poor, children for dinner on Sunday's, we actually love the planet we live on and desire an efficient energy source that is clean and affordable regardless of the source.

          Thing is, we're also reasonable, logical and we do not bury our head in the sand ignoring simple facts. Renewable energy, including solar, simply does not have the capacity to replace fossil fuels as a RELIABLE source at this time. The sooner the extreme left grasp that simple fact and begins to implement an all of the above energy plan, the better off America will be.

  • arp

    Another blow by Obama to kill thousands more jobs in Appalachia. We cannot be done with this evil president soon enough. But he's got two more years to do even more damage to us. He's also packed the 4th Circuit Court of Appeals with left wingers, so coal companies are going to have very little chance to survive. The tree huggers like this, but they have no clue (or don't care) what that's going to do to West Virginia's economy and tax base. Trust me, it's going to be very severe!

    • Hop'sHip

      The opinion was written by Judge Brett Kavanaugh, a Ken Starr protege who was appointed by Bush43 and who has sterling conservative credentials. In case you didn't know. I suspect you don't care.

      • Tim C

        If Bush43 had known what he was doing we wouldn't be stuck in a second term of Obama. Bush was hardly a true republican.

      • Debra

        +1

  • Woodchuck

    More loss to coal.

    I think the EPA should shut down the strip malls, hospitals, schools, airports etc, that are built on old stip jobs.

    Rail trails should be closed because the Railroad was used to haul coal to the power hungry in DC.

    Highways should be removed because they were used to transport coal.

    And the locks and dams should be removed because they were used to transport coal.

  • zero tolerance

    "And daddy won't you take me back to Muhlenberg County
    Down by the green river where paradise lay?"
    "Well, I'm sorry my son, but you're too late in asking
    Mister Peabody's coal train has hauled it away"

    • Debra

      Love that song.

    • Aaron

      What about the mountain top removal currently going on in Charleston?

    • Derek

      It's ok to cover creeks and rivers in order to make rds for tourists. Cut down Mtns in TNT to put hotels around for Dolly world.

  • Pickle Barrel

    EPA now has permission to change the rules after the game starts. A coal company would be hard-pressed to justify investing millions with the possibility the EPA could pull the rug out from under their feet. Well played, Obama…your war on coal marches on.

  • Mason County Contrarian

    Could underground miners' jobs be further secured by this ruling?

    One would hope so.

    • Aaron

      How so given that most MTR sites set atop mined out underground mines with thin seams of coal that is virtually unreachable from underground?

      • Hillboy

        Mining will eventually be done robotically and thin seams unreachable by humans will be minable without having to blast off the overburden.

  • Aaron

    It doesn't take a brilliant legal mind to understand how this decision can be utilized by other government oversight agencies in future years meaning very few business permits are safe after issued.

    • Hillboy

      It's really not applicable across the board. The ruling has more to do with how the rules were written regarding the difference in the roles of EPA and ACE specifically with MTR.

      • Aaron

        And carbon is a naturally occurring gas that the EPA now has authority over. When you start talking government oversight, it doesn't take much for 2+2 to equal 5. Or 7. Or 9. Or whatever they want it to add up to.

        Somewhere, someone in an agency will cite this ruling to support their desire to suddenly restrict and/or revoke something they did not have control over prior and some judge, somewhere, will agree. It's only a matter of time.

        • Hillboy

          The decision is really much narrower than that Aaron. The CWA clearly designates EPA as the lead agency when it comes to permits under the CWA. The ACE has a role in the CWA when it comes to section 404 permits for dredge and fill---in this case valley fills. However, the law makes clear that EPA has the right to provide input on 404 permits and, when EPA considers a 404 permit granted by ACE to not meet the goals of the CWA the law gives them the right to veto it. It is really very clear cut but this decision only applies to the relationship between EPA and ACE for 404 permits, which is spelled out clearly in the CWA. For someone to try to use this decision somewhere else would be met with derision. So, you can relax just a little.

          As for carbon, yes it is a naturally occurring substance and in the form of carbon dioxide contributes to plant growth. But, I think you are well aware that too much of a good thing can be bad. The same goes for nitrogen. 80% of the atmosphere is nitrogen and in the right form it is an effective plant fertilizer. But, too much nitrogen fertilizer use in the midwest has produced a dead zone in the Gulf of Mexico equal in size to the state of Connecticut. Context is key. What's good in one context may be bad in another.

          You could take those two naturally occurring substances, carbon and nitrogen and combine them to form cyanide. You wouldn't want to take it a nutritional supplement though.

          • Hillboy

            I meant to write----as a nutritional supplement.

        • The bookman

          +1