A confluence of events has reduced coal consumption in the United States to its lowest levels in decades. A string of court victories, however, has provided a lifeline to surface-mining operations (commonly referred to as mountaintop removal) in Appalachia.
For years, about half of U.S. electricity came from coal combustion. That has dropped to 44 percent and then 36 percent over the past two years. Appalachian coal companies have countered by nearly doubling their coal exports.
The reasons for the drop in domestic coal use are many, probably the greatest being the abundance of cheaper, cleaner natural gas. The maturation of renewable energy sources and intensive public advocacy campaigns have also had an impact, as have state and regional efforts to reduce greenhouse gas emissions and encourage renewable energy.
The industry argues that regulatory efforts under the Obama administration also have significantly decreased the use of coal. A handful of major new air-quality standards that were delayed under the Bush administration have been proposed or implemented; there has been increased enforcement of mine safety standards after a 2010 disaster in West Virginia killed 29 miners; and there are proposals to treat fly ash, a byproduct of coal combustion, as a hazardous substance.
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But it is the Environmental Protection Agency's attempt to utilize the Clean Water Act to make it harder for surface mining operations to dispose of the earth they displace into nearby valleys that directly targets surface mining in Appalachia.
The EPA bases its increased enforcement on reports that Appalachian waters downstream of mountaintop removal have significant increases in suspended solids or "conductivity" and hardness as well as sulfate and selenium concentrations. The coal industry challenged the EPA's authority in court. In a series of three decisions over the past nine months, the U.S. District Court for the District of Columbia has sided with industry.
First, the court found that the EPA and the Army Corps of Engineers could not, by a memorandum of understanding, lay out a procedure whereby the EPA determines which discharge permit applications should be subject to enhanced environmental review. The second decision focused on a particular permit that the Army Corps had issued to the Mingo Logan Coal Co. in West Virginia; the court found that the EPA lacked the authority to veto the permit once the Corps had issued it. The most recent decision held that the EPA's attempt to impose a "conductivity" water-quality standard could not be done by a series of "guidance" papers.
A bit of background: The Clean Water Act, one of a series of major environmental laws passed in the 1970s, prohibits discharges into the waters of the United States without a permit. The EPA has authority over permits for the discharge of pollutants, while the Army Corps has authority over permits for the discharge of dredge or fill material.
This makes sense. The act contemplates that the EPA is in charge of pollution-causing discharges (section 402), and the Corps is in charge of earth-moving discharges (section 404). The problem for mountaintop removal is that, while the displaced earth is clearly fill material, it also contains pollutants that reportedly lead to downstream contamination when the material is pushed off the mountain edges.
The U.S. Supreme Court decided in a couple decisions that section 404 applies to, and that the Army Corps is the primary permitting authority for, the disposal of earth from surface mining operations. But the EPA still has a role. The EPA shares responsibility with the states to establish water quality standards, which in turn inform permitting authorities as they consider discharge permit applications.
Moreover, the EPA has the authority to prevent the Corps from issuing a discharge permit for a particular site when the EPA determines that it will have an adverse effect on municipal water supplies, wildlife or recreational areas. The recent decisions do not undermine these aspects of the EPA authority.
What the EPA cannot do, according to the court, is set water quality standards or determine enhanced environmental review by something less than formal rule-making.
So, is Appalachian surface mining out of the woods after these recent decisions? No. The appeals process needs to run its course. But even if the D.C. district court decisions survive, it does nothing to undermine the EPA's authority to stop future permits before they are issued.
If anything, the recent decisions affirm the EPA's authority to prevent the Corps from issuing such permits, so long as the EPA intervenes before their issuance. Moreover, nothing in the decisions prevents the EPA from enacting regulations that codify both the conductivity water quality standard and the enhanced environmental review agreement between the EPA and the Corps.
Finally, and most important, the economic realities of natural gas abundance and renewable technologies, as well as the scientific realities of climate change, will determine coal's (and surface mining's) future far more than anything the EPA does.
Whether the EPA aggressively intervenes in Appalachian surface-mining enforcement will likely depend on the discretion of the White House occupant. But truth is, forces far more powerful than EPA regulations are driving the future of coal in Appalachia.