My colleague Rick Steelhammer has the story this morning about a federal judge halting work on the Beech Ridge Energy wind power facility over in Greenbrier County, W.Va.
One Coal Tattoo reader is already citing this story as proof that environmentalists want to end all energy production and have us all — what’s that bumper sticker line, “Freeze to death in the dark”?
I don’t want to go too far into the weeds on the issue of the potential problems associated with wind-energy development in Appalachia. But it seems like there are some similarities between what’s happened with Beech Ridge Energy and what’s going on with mountaintop removal coal mining, especially with the latest threat by CONSOL Energy to lay off 500 workers in Clay County because of a federal court ruling that requires public involvement in key parts of the decision-making process on one of its permits.
The take-home message might be that the world is changing, and citizens are demanding that developers and the government consider the impacts of energy projects, ensure that they avoid or minimize those impacts, and try to move us all toward a cleaner future. And developers (or coal companies) who ignore that reality are rolling the dice, both with their investors’ money and — in the unfortunate case of CONSOL — their workers’ jobs.
First, let’s review what happened with CONSOL’s Fola Coal operation. For a complete history of this, check out my previous post, CONSOL to lay off 500 miners … But who is to blame?
In short, Fola applied for a permit in October of 2004. A month later, the Corps of Engineers told the company it needed to submit a copy of its “mitigation plan,” a key document that outlines the company’s proposals to compensate for the streams it would bury, “mitigating” the damage to below the significance level that could block the permit from being issued. But, the Corps went ahead and put the permit out for public comment anyway, without the details of the mitigation plan. Environmentalists objected, saying they should have the opportunity to have experts examine the mitigation plan and see if it was sufficient. Public comments to that effect were submitted in May 2005.
Corps officials went ahead and issued the permit in March 2008, without first making the mitigation plan public and allowing citizens to offer comments on its adequacy. Fola lawyers joined the Corps in defending this decision to keep the public out of the process.
But U.S. District Judge Robert C. Chambers disagreed. In his ruling late last month, Judge Chambers said the mitigation plan was a key part of Fola’s permit — and a central factor in the Corps’ decision to grant the permit — and therefore had to be subjected to the scrutiny of a public comment period. Chambers also opined that the ruling could easily have been avoided, if only the Corps had issued a supplementary public notice to allow comment on the mitigation plan:
… The Court finds it prudent to note that this litigation could have
easily been avoided and the flaw in the original Loadout and Fola Notices easily remedied if the Corps had issued supplemental notices in the instant case. With regard to the Loadout and Fola applications there were periods of approximately nine months and nearly a year and a half, respectively, between the time the company submitted a CMP and permit approval.
Such notice would have apprised Plaintiffs and the public in general of the truly significant issues raised by each proposal, therefore providing the public an opportunity to comment intelligently thereon. Consequently, such supplemental notice would have conserved judicial and other government resources, meanwhile, preventing the expenditure of time, money and stress on the part of Plaintiffs as well as both mining companies.
As I reported previously, public officials like Rep. Shelley Moore Capito, R-W.Va., and business leaders like Steve Roberts of the West Virginia Chamber of Commerce were quick to jump on the CONSOL layoffs. They blamed the Obama administration’s “war on coal,” and the “uncertainty” they say is caused by what CONSOL referred to as a “repeated assault from nuisance lawsuits and appeals of environmental regulations.”
I haven’t heard any business leaders or government officials question why Fola — let alone the Corps of Engineers — didn’t just take the time to let the public comment on the company’s mitigation plan. Coal company officials tout these mitigation plans, and the man-made streams they generally involve, as being great for the environment. If that’s true, then you would think the plans would easily withstand a little scrutiny from a public comment period.
Now, how does the court ruling on Beech Ridge Energy come into all of this?
Well, as Steelhammer explained in his story, U.S. District Judge Roger W. Titus “determined that Beech Ridge violated the terms of the Endangered Species Act by not obtaining an Incidental Take Permit from the U.S. Fish and Wildlife Service before beginning work on the project.“
Under the ESA, it is generally illegal to kill — “take” — endangered species. You can basically get exempted from that prohibition of you get a permit from the U.S. Fish and Wildlife Service. Beech Ridge Energy never did that.
As Steelhamer explained:
… Titus determined that the facts in the case prove “that wind turbines kill or injure bats in large numbers,” and that there is a “virtual certainty that construction and operation of the Beech Ridge Project will take endangered Indiana bats” in violation of the Endangered Species Act.
The need to develop renewable energy and to protect endangered species “are not necessarily in conflict,” Titus wrote “Indeed, the tragedy of this case is that the defendants (Beech Ridge and its parent company, Invenergy LLC of Chicago) disregarded not only repeated advice from the Fish and Wildlife Service but also failed to take advantage of a specific mechanism, the ITP (Incidental Take Permit) process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species.”
Further:
The judge concluded that the only way for Beech Ridge to “resolve the self-imposed plight in which they now find themselves is to do belatedly that which they should have done long ago: apply for an ITP.” He urged the Fish and Wildlife Service to “act with reasonable promptness but with necessary thoroughness” in expediting the permit.
So, the similarity here is that the adverse court rulings against CONSOL and against Beech Ridge could easily have been avoided. Both companies could have taken routes other than fighting public involvement and refusing to obtain a necessary permit.
My buddy Frank Maisano, a spokesman for the wind energy industry, told Steelhamer that the Beech Ridge ruling could “embolden die-hard opponents of wind power projects that are approaching the finish line.” He said opponents of the wind project “have thrown everything but the kitchen sink at this project, and finally something has stuck.”
Similarly, CONSOL’s Nicholas J. DeIuliis characterized the citizen lawsuit seeking public input on Fola’s mitigation plan an effort to “unnecessarily impede our ability to sustain our operations.”
I’ve met folks who live near proposed wind energy projects who are against those projects period. And certainly, there are those in the environmental community who want to shut down all mountaintop removal — maybe even all forms of coal mining.
But look at what Judge Titus wrote in his decision on Beech Ridge Energy:
Congress, in enacting the ESA, has unequivocally stated that endangered species must be afforded the highest priority, and the FWS long ago designated the Indiana bat as an endangered species. By the same token, Congress has strongly encouraged the development of clean, renewable energy, including wind energy.
The development of wind energy can and should be encouraged, but wind
turbines must be good neighbors.
When I interviewed new Office of Surface Mining Reclamation and Enforcement Director Joe Pizarchik yesterday, he talked repeatedly about the “balance” Congress set out to achieve when it wrote the 1977 Surface Mining Control and Reclamation Act.
Indeed, in that landmark law, Congress set as national goals, among other things:
… Assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment … and the Nation’s need for coal as an essential energy source; and
– Assure that coal mining operations are so conducted as to protect the environment.
So, there may be folks who simply want to stop wind energy (at least if it’s proposed near their own community) and those who want to end all coal mining. But for the coal industry — or the wind energy industry, for that matter — to simply attack rulings like Fola and Beech Ridge ignores Sen. Robert C. Byrd’s recent call to “embrace the future.” As Byrd said:
… We have our work cut out for us in finding a prudent and profitable middle ground — but we will not reach it by using fear-mongering, grandstanding and outrage as a strategy.
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[...] Blogs @ The Charleston Gazette – » What do wind projects and strip mines have in common? blogs.wvgazette.com – view page – cached My colleague Rick Steelhammer has the story this morning about a federal judge halting work on the Beech Ridge Energy wind power facility over in Greenbrier County, W.Va. [...]
Green is where the growing job sector is.
New Report from California.
http://www.centralvalleybusinesstimes.com/links/Many_Shades_of_Green_1209.pdf
Two interesting things here:
1) Governor Manchin, who purports to support all forms of energy development (“we need it all”), hasn’t mumbled a peep about environmental litigation taking away jobs from West Virginian’s. Maybe he doesn’t believe a wind farm job is as important as a coal job? Maybe he doesn’t really care about the jobs? Perhaps the wind industry didn’t donate enough to his campaign (over $1 million from the coal industry b/w 2000-2008)? http://www.wvoter-owned.org/reports/health_in_coalfields.pdf
2) the relative environmental impacts between wind and coal aren’t equal. per MW, coal has a far greater impact on the environment than wind. The NAS recently reported that coal-fired power plants imposed an average cost of 3.2 cents per kilowatt-hour from air emissions alone. Or in dollar terms, “$120 billion in the U.S. in 2005, a number that reflects primarily health damages from air pollution associated with electricity generation and motor vehicle transportation. The figure does not include damages from climate change, harm to ecosystems, effects of some air pollutants such as mercury, and risks to national security, which the report examines but does not monetize. ” Further, the clearing of forest for a wind farm is small relative to a mountaintop removal coal mining site. Though, per job, perhaps they’re about equal. A 300 MW wind farm would require the initial clearing of approximately 150 acres and would provide for about 20 jobs. I could expect that a 1,000-acre MTR site could provide for 120 jobs.
Supposing that’s true, the question can again be asked: Why isn’t Manchin bashing the environmental groups that opposed this wind farm? Why isn’t he standing up for jobs with wind power?
I’m not asking this question because I think he should. I believe all forms of energy development should be help to the utmost scrutiny under the law (without attempting to change the law), and that the Governor should stay out of it. However, there does seem to be a strong act of hypocrisy occurring. Or, perhaps, the wind industry needs to open its wallet more when Gov. Manchin runs for Byrd’s Senate seat. That seems to be the only way the Governor will actually “support” jobs for West Virginians.
Interesting insight, Ken.
When industrial wind turbine installation developers — or strip mine companies — want to do large-scale landscape disturbance that is inescapably harmful to some degree to the nearby people and environment, the companies (quite understandably) don’t want to do any more than they are forced to do about learning and disclosing the consequences of their actions.
The judge’s order in the wind turbine case that Ken links to politely ripped the wind farm developer a new you-know-what, in discussing how the developer had blown off the requests of the Fish and Wildlife Service.
We’ll see if these two rulings are upheld on appeal, but it does seem now that the “bull-ahead” approach to evaluating local impacts of major landscape alterations has suffered a couple of legal setbacks.
If a wind farm can be be stopped for not having a takings exemption, why not an MTR site? I am as amazed that the ESA is not being used here in West Virginia to protect streams, just as I am that the Clean Water Act is routinely ignored. I suspect the true reason is that conservationists are afraid to intervene here with a salamander lawsuit. Imagine the outcry. Maybe we can learn something from the Beech Ridge case though, that both industries should be held to the same standards.
It’s my understanding that surface permits routinely are required to do bat studies and surveys, and approved permits have restrictions on clear cutting that could affect endangered bat habitat.
It’s worth noting that a major problem cited in court challenges to the Bush administration’s changes to the stream buffer zone is that when OSMRE rewrote the rule, it did not consult with the Fish and Wildlife Service on the potential impacts on endangered species.
As the Southern Environmental Law Center explains on its Web site:
In issuing the new buffer rule, OSM relied on a 1996 “biological opinion” which says that no coal mining operation anywhere in the U.S. would ever harm threatened or endangered species listed then, or in the future – as long as OSM complied with then existing regulations, including the former 1983 stream buffer zone rule. This biological opinion more or less excused OSM from consulting with the FWS on a case-by-case basis on each coal mine application. SELC had petitioned the Bush administration to overturn this illegal, “one-size-fits-all,” policy, but under the Bush Administration, our petition languished.
http://www.southernenvironment.org/tennessee/stream_buffer_zone_rule/
And, when Interior Secretary Ken Salazar sought to overturn this Bush rule, he specifically cited the improper failure to consult with FWS on the rule change.
Ken.
CW, if it is arrogant of people to think that we can have an impact on the climate, is it arrogant to think that dumping toxic waste into the oceans will have an impact on the health of the marine ecosystem.
Or, is it arrogant to think that emitting mercury from smokestacks has an impact on birds of prey? Or, what about discharging untreated municipal waste into rivers? Is it arrogance to think that human activities have an impact on the natural processes of the earth, or is that common sense?
Your comments are so far off the mark, it is almost not worth the effort to respond to them. Almost.
I don’t know why people keep saying that wind isn’t viable. Denmark gets almost 20% of their electricity from wind. Wind power in Germany employs over 90,000 people. Nobody with any common sense says we have to shut down all coal plants tomorrow. Just like anybody with any common sense would scoff at renewable energy that provides permanent jobs, just because it’s new and “green.” But as technology improves – and as we invest in energy efficiency, which can happen tomorrow if we want it – we’ll be able to transition to a cleaner, cheaper energy source.
I just don’t understand this mental block against preparing for the future. The rest of the world is moving away from coal (except China, but even they’re beating us in the green tech race), and people are using energy more efficiently every year. Already a few utility companies have said they’re taking coal plants offline or converting them to natural gas. The rest of the world is waking up to the realities of MTR and the health impacts of mining and burning coal. And eventually coal will run out.
It seems to me that we can either start courting the energy efficiency money and the turbine/solar manufacturing jobs and be ready when the bottom falls out of coal, or we can just fiddle while the Titanic sinks. Appalachia’s got a proud history of providing energy for America. There’s no reason we can’t continue to do that in the future with renewable energy.
CW, your comments about parasitism are insightful. People who are engaged in some kind of oppositional activity are often economically and existentially intertwined with the things they are opposing.
For example, I made a living for many years getting money damages for people who were injured by coal mining — and I had no illusions about where the money to pay me was coming from: coal companies and coal mining.
But one can continue that parasitic analogy too far. To pick an extreme situation — would you say that the soldiers who fought against the Nazis were parasites on National Socialism?
CW, as an environmental scientist, you must have some respect for the institutions that the scientific community has created — journals, institutes, universities, etc. Basically every one of these institutions has now concluded that, “we have an effect on the weather” (as you put it).
You say that it’s “arrogant” to say this. You sort of suggest that all of these scientists are making this stuff up in some sort of consiracy to make money. I don’t follow that.
There are a lot of commenters on this blog, from a lot of perspectives. My limited experience is that expressing respect for others’ differing viewpoints, and admitting one might be wrong about some things, can lead to surprising and good results.
Tom,
This part of what you said:
There are a lot of commenters on this blog, from a lot of perspectives. My limited experience is that expressing respect for others’ differing viewpoints, and admitting one might be wrong about some things, can lead to surprising and good results.
Seems to fall right in line with what Sen. Byrd told us all last week … but then again, you could be wrong.
Ken.
[...] didn’t mention that the Beech Ridge Wind project was blocked by a federal judge because the company ignored recommendations from regulators that it obtain a permit that would allow it to legally kill endangered [...]
I read these discussions and wonder how we became a country willing to industrialize every inch of land to “Save the planet” and cut dependence on foreign oil. Open spaces are not seen as valuable unless covered with wind turbines and solar panals (meaning they have no value). Animal species have no value when they stand in the way of “progress”. I have to ask, if the coal mines on the mountain top were zero-carbon output, would that mean we must support them? If the turbines pumped out pollutants but required one-tenth of the land area as a mine, would we not support them? Is the only thing that counts the “carbon foot print”? I definately agree the laws should apply equally, but they don’t. You cannot build a coal power plant without an EIS and approval anywhere as far as I know. You can put in 200 turbines with no permit in an agricultural area in some states. This not equal by any stretch.