What will Obama do now about mountaintop removal?
Well, now that a federal judge has nixed a key component of the Obama administration’s plan to beef up regulation of mountaintop removal, what comes next?
Obama officials certainly aren’t saying, as indicated by the refusal of Interior Department spokeswoman Kendra Barkoff to comment at all beyond this prepared statement on the court ruling:
This administration has said it is determined to improve mining practices and we will do so within the context of the court’s ruling, which we are reviewing.
As you recall, the ruling yesterday by U.S. District Judge Henry H. Kennedy Jr. said Interior Secretary Ken Salazar can’t reverse a Bush administration mining rule change — the one that gutted the stream buffer zone rule — without going through the proper rulemaking process, including public comments, hearings, all that troublesome stuff.
One thing I loved about this situation was how it put the National Mining Association in the position of being the ones arguing for good government (this after eight years of having a seat at the table, in the room, guiding Bush administration policies on mountaintop removal and most other energy issues).
NMA spokeswoman Carol Raulston put it this way:
In determining the federal government cannot arbitrarily strike down a regulation, the court has preserved an open and transparent regulatory process that provides for notice and protects the rights of all interested parties to comment. The court clearly outlined the obligations of government to operate within the scope of duly promulgated regulations and administrative procedures. NMA believes this is an important decision and has application across a broader range of ongoing regulatory activities affecting U.S. mining.
I understand that some environmental groups lawyers were telling administration officials behind the scenes that Salazar was taking the wrong legal steps if he wanted to get rid of the buffer zone changes instituted by the Bush Interior Department.
But, the environmental group that filed one of two challenges to the Bush changes to the rule — the National Parks Conservation Association — filed a court brief supporting the Obama effort to circumvent the public rulemaking process. The best the groups that filed the other suit could do was a Sierra Club statement calling the court ruling “unfortunate.”
Can you imagine the outcry from the environmental community if the Bush administration had tried this kind of legal maneuver in one of its many efforts to weaken pollution rules? By their silence on this Obama action, are the environmentalists saying the end justifies the means if the end is tougher regulation of strip mining? Or does support for open government depend, as the saying goes, on whose ox is getting gored?
In any event, this ruling does put a big monkey wrench in the plans the Obama administration has touted as its initiative to “reduce environmental impacts” of mountaintop removal.
So what next?
Well, the two citizen group lawsuits challenging the buffer zone rule are still pending before Judge Kennedy. So those groups can litigate those cases. Or, the Obama administration could initiate its own new rulemaking to overturn the Bush buffer zone changes — and in the process actually tell citizen groups and the industry whether it plans to apply buffer zone protections to the footprint of valley fills.
Environmental groups have called for — and Obama has promised — reforms in the way other federal agencies, from the EPA to the Corps of Engineers and Interior’s OSMRE, regulation strip mining. On the one side, the National Mining Association says these enhanced permit reviews amount to a “regulatory black hole” for new mining operations. On the other, environmental groups argue the enhanced permit reviews are far, far short of the mountaintop removal ban they hoped Obama would institute.
Somewhere in the middle, what appears absolutely certain is that neither side is really clear at all on what the Obama administration’s position is, what exactly its goals are, or what exactly the rules on when permits will or won’t be issue are.
The transparency promised by President Obama across government generally, and by White House officials and regulatory agencies on mountaintop removal specifically, just isn’t there.
Take the Corps of Engineers’ issuance of a big new strip mining permit for CONSOL Energy’s Peg Fork Surface Mine. The permit was issued nearly a week ago, last Friday, and neither the Corps nor EPA (which lifted its objection to the permit) have publicly released permit documents that would tell the public the scope of what was approved or what changes were made to reduce environmental impacts.
Where’s the transparency? And where are the concrete guidelines for what is and isn’t allowed for a mining permit to be approved or rejected? If Obama is going to ban mountaintop removal, or enact policies so stringent that permits slow to a trickle and the faucet eventually shuts off, it should do those things in an open, transparent way. If it’s instead simply going to toughen a few policies here and there to limit the damage, it should likewise be open about that.
As Joe Lovett, executive director of the Appalachian Center for the Economy and the Environment said the other day on Coal Tattoo:
What the administration has to do is develop a policy and let everyone know what that policy is.
6 comments
To answer your question (and please correct me if I’m wrong), my impression was that Salazar challenged the Bush buffer rule on the basis that the changes were last minute and rushed without going through a full regulatory review. As you note (and, again, correct me if I’m wrong) law suits by environmental groups that challenge whether the rule changes are legal (as opposed to whether the procedures used to write them were legal) are ongoing. However, it was also my impression that the Obama Administration, by weakly challenging the new buffer rule, was basically throwing a meaningless bone to the environmental community while limping along with the status quo. If they really wanted change, they would begin to rewrite or challenge the earlier Bush fill rule and push for Congress to pass the Clean Water Protection Act. Keep in mind Obama supported the Bush Administration position in that gold mining case in Alaska–a case decided largely on the basis of a Bush Administration MOU between the Corps and EPA that the Obama Administration could have easily withdrawn–probably could still withdraw. In fact, whenever a critical issue has come up–asking the 4th Circuit to review the Chambers case en banc, nominating a reformer for OSM, permitting scores of new surface mines–the Obama Administration has sided with coal.
Yes Ken! This is why the NMA absolutely, wholeheartedly supports ending NWP 21 permits: “[to preserve] an open and transparent regulatory process that provides for notice and protects the rights of all interested parties to comment.” Sometimes I wonder if folks like Carol Raulston are just out to give hypocrisy a bad name.
This just in … Obama’s plan?
FRANKFORT, Ky. (AP) — The Obama Administration is mulling a proposal for a new jobs program with the aim of planting trees on Appalachian mountaintops that have been scalped by mining companies in search of coal.
A group of researchers and government field workers collaborating under the banner of the Appalachian Regional Reforestation Initiative proposed the project that would both ease unemployment in the economically depressed area and restore forests annihilated by coal mining.
Office of Surface Mining forester Patrick Angel said he has discussed the initiative with Van Jones, special adviser on green jobs for the White House Council on Environmental Quality.
Angel said between 750,000 and 1 million acres of land in Appalachia have been deforested by mining. He said replanting trees on that land would generate much needed jobs for Appalachian residents struggling with chronic joblessness.
Ken.
Red Desert,
In response to your question …
There were two separate lawsuits by environmental groups challenging the buffer zone rule …
One was filed by Earthjustice, Sierra Club and others. I explained the complaint in that case in this story, http://www.wvgazette.com/News/200812220193. In short, as I wrote in that story:
The citizen group lawsuit alleges that the rule changes violates OSM’s mandate under the strip-mine law to protect streams, and that the agency did not consider other alternatives when it studied the environmental impact of its proposal. Also, the suit alleges that EPA went against its own studies showing damage from mountaintop removal when it approved the OSM rule change.
The other one was filed by the National Parks Conservation Association, and is discussed here:
http://www.ens-newswire.com/ens/jan2009/2009-01-18-092.asp.
In short, that second suit alleged that OSM did not consult with the Fish and Wildlife Service about the rule change’s potential impacts on endangered species and critical habitat.
In seeking to rescind the Bush rule changes, the Obama administration basically admitted that this was true.
I hope that clears up any questions about what the lawsuits were about and what the basis for Obama’s effort to rescind the rule change was.
Ken.
Many students of law, politics, and economics have observed that “muddling along,” “a little bit here, a little bit there,” is the common behavior of elected officials faced with “tragic choices,” where no matter what they do, important social values are going to be injured.
Why expect anything else on MTR?
These sorts of events are best evaluated, possibly, by looking at trends. The trend in the MTR area has been basically all one way for the last decade, with the exception of some half-way decent science, and the the development of vocal public opposition. As to the trend under the Obama folks, it might be a little too early to say.
Please, give me a break. A million plantation trees to hide the scarring. Excuse me, but what does Van Jones know about forestry? This is right out of the Bush Administration.
Ken, thanks for the detailed response.
So both suits challenging the Bush buffer rule changes continue and have yet to be ruled on the merits. Wed.’s opinion throws out Salazar’s request to vacate the rule and “settle” the NPCA lawsuit in advance of a review on the merits of the case; Judge Kennedy writes this would be a violation of the lawful administrative procedure. Legal Planet says that Salazar’s motion should strengthen the NPCA position going forward–because Interior now admits that the Fish and Wildlife/ESA review was not properly undertaken during the Bush rule making. That’s important to note and positive.
This is all very much related to the Greenwire/Times article on ESA you link to in this week’s Friday Roundup. That article discusses the 15 page nationwide ESA opinion on coal mining. An amazing thing I had never heard of before. Another shocking way US law has been twisted for coal.
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