A FEDERAL judge seemed less than pleased by state Environmental Protection Director Michael Miano's decision to issue the largest mountaintop-removal mine permit in West Virginia history amid ongoing litigation and federal regulatory scrutiny.
According to DEP spokesman Andy Gallagher, Chief U.S. District Judge Charles Haden had assumed that the DEP wouldn't act on the permit until the court had held hearings on a pending lawsuit.
The coalfield residents and environmentalists who had filed the suit were sandbagged by Miano's approval of the permit. This decision seems illegal on its face, since a permit cannot be issued until it is complete, and it can't be complete without a federal water permit that the U.S. Environmental Protection Agency is withholding.
But environmentalists didn't have to ask the judge to challenge the permit. Haden himself called a hearing for this afternoon to decide whether the permit was legally issued.
The rationale behind Miano's action is dangerous. He said he was reacting to the threat by Arch Coal Inc. to lay off 400 workers if permits to expand its Dal-Tex mine are not granted soon.
Let's be clear here. We do not want to see one miner lose a job over this issue. But Miano's duty is not to protect jobs. His job is to safeguard the environment.
If this permit is allowed to stand, every company that wants to bend environmental rules can send out layoff notices, then wait for state protective agencies to surrender. The state simply cannot let this sort of blackmail determine its environmental policies.
Once again, Miano's coal industry bias interfered with his regulatory judgment. This is why federal regulations require industry employees to spend at least two years doing something else before becoming regulators.
Miano didn't have that two-year period to shed some of his industry perspective, and it shows. We hope the EPA fulfills its promise to isolate Miano from these decisions. If not, citizens may have to take EPA to court yet again.
Miano's latest decision is wrong, and perhaps illegal, but it is inconsequential except for the disturbing precedent it sets. This permit is useless without companion permits approved by the EPA and the U.S. Army Corps of Engineers.
Still, we hope Judge Haden puts Miano in his place this afternoon.