CHARLESTON, W.Va. -- A confluence of events over the past few years has reduced coal consumption in the United States to its lowest levels in decades. A recent 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 the electricity generated in the U.S. came from coal combustion. That number has dropped, somewhat staggeringly, to about one-third over the past two years. Appalachian coal companies have countered by nearly doubling the amount of their coal exports over the same time period. Reasons for the drop in domestic coal use are many, probably the greatest being the somewhat sudden abundance of cheaper and cleaner natural gas.
Industry also argues that regulatory efforts under the current federal administration have significantly contributed to decreased use of coal in this country. A handful of major new air quality standards that were delayed under the Bush administration have been proposed and/or implemented; there has been increased enforcement of mine safety standards after a 2010 disaster at the Upper Big Branch mine in West Virginia killed 29 miners; and there are continuing proposals to treat fly ash, a byproduct of coal combustion, as a "hazardous substance" under federal law.
But it is the EPA's attempt to utilize the Clean Water Act to make it nearly impossible for surface mining operations to dispose of the earth they displace into nearby valleys that directly targets surface mining operations prevalent in Appalachia.
The EPA purports to base its increased Clean Water Act enforcement on reports showing that Appalachian sites downstream of mountaintop-removal operations have significant increases in conductivity and hardness as well as sulfate and selenium concentrations. The coal industry pushed back, challenging the EPA's Clean Water Act authority in federal 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.
In the first decision, 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. And the final decision, rendered just recently, 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 is needed to understand the recent court decisions' impact on surface mining in Appalachia. The Clean Water Act, one of a series of major environmental laws passed in the early to mid-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 of Engineers 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).