A Kentucky puzzle: How is it that coal operators feel buried under government red tape, at the same time the public sees an industry that's been allowed to wreck the environment and worsen flooding in the mountains?
This puzzle is illuminated by a challenge of a strip-mine permit issued to Cambrian Coal for a site near Elkhorn City in Pike County.
At issue is whether the state conducted a legitimate analysis of the cumulative impact on water. By cumulative, the law means whether the proposed mining, combined with past and future mining, would result in material damage to the quality or quantity of surface and ground water outside the mine site.
The state Division of Mine Permits produced a 33-page "cumulative hydrologic impact analysis" complete with tables and appendixes — but short on analysis.
The regulators approved the strip mine without considering its discharge of metals, minerals and other solids into streams. This was a critical thing to overlook because, according to state data, tributaries of the Russell Fork that would receive discharges from the new mine are already impaired by the same pollutants from earlier mining. (Note: the law required consideration of cumulative impact and dissolved solids long before the Obama administration.)
What we see in this case, and hundreds of others through the years, is going-through-the-motions regulation. Coal companies employ engineers to develop detailed plans and reams of data, which state regulators dutifully review, before reaching the foregone conclusion that the coal company's plans comply with all environmental standards.
The cumulative impact of this kind of regulation has been the scalping of entire watersheds.
Regulators who do the analyses would say there's no proof of this; but common sense, experience and scientific studies tell us rain running off denuded mountains into silted streams is more likely to cause flooding than rain that is absorbed by forests and carried away by clear running streams.
In the case of the Elkhorn City permit, an administrative law judge halted the mining while the challenge to the permit could be litigated. His ruling was overturned by Energy and Environment Secretary Len Peters, who allowed the mining to resume.
Franklin Circuit Judge Thomas D. Wingate recently dismissed an appeal of Peters' order. Wingate said he lacked the authority to halt the mining and that, until the state regulatory agency has issued a final order, the permit cannot be challenged in state court.
Which leads to another Kentucky puzzle: If citizens can't be heard in court before possibly illegal mining is underway, a mountain lowered by 400 feet and the water permanently damaged, do the public and environment have any defenses at all?