• US House, witnesses clash over Spruce Mine permit

News
June 1, 2012
By Taylor Kuykendall, Reporter
 
The battle for the Spruce Mine No. 1 mine permit was analyzed by a U.S. House of Representatives committee this morning.
 
Since being issued the largest permit for a mountaintop removal project in history, Arch Coal has seen permit revocation, overturning of that revocation and now it awaits results of an appeal of that federal decision to overturn revocation of the permit.
 
In March, U.S. District Judge Amy Berman Jackson in Washington, D.C., ruled in favor of St. Louis-based Arch Coal subsidiary Mingo Logan Coal Co. regarding a vetoed surface permit. The permit had been issued by the U.S. Army Corps of Engineers but was vetoed by the EPA in January 2011. The EPA revoked the permit after it had been granted, saying the environmental impact would be too great to the region.
 
"It is undeniable that the provision in question is awkwardly written and extremely unclear," Jackson wrote in her ruling. "Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be."
 
The House Natural Resources Committee Subcommittee on Energy and Mineral Resources held an oversight hearing on the "Obama Administration's Actions Against the Spruce Coal Mine: Canceled Permits, Lawsuits and Lost Jobs."
 
The section 404 permit was revoked by the EPA in January 2011 after it had already been issued by the U.S. Army Corps of Engineers in 2007. The original surface mine permit was originally issued in 1998 by the State of West Virginia.
 
No-shows and sideshows
 
One of the most notable features of the committee hearing was that Obama administration officials declined to attend.
 
EPA Administrator Lisa Jackson, Joseph Pizarchik, director of the Office of Surface Mining Reclamation and Enforcement and Jo-Ellen Darcy, assistant Secretary of the Army's U.S. Army Corps of Engineers were all invited, but declined to attend.
 
Rep. Doc Hastings, chairman of the Natural Resources Committee, criticized the agencies for not attending the hearing or sending someone in their place.
 
"We have heard a lot about openness and transparency from this administration," Hastings said. "It's very disappointing."
 
Nameplates for the no-shows were still placed at the table, and Rep. Doug Lamborn, R-Colo., still went through the procedure of calling on those who didn't attend the hearing or send representatives.
 
Rep. Rush Holt, D-N.J., said House Republicans were putting on a show to score political points and not to address the complex issues surrounding the Spruce Mine permit.
 
"This sideshow confirms that the officials had better things to do than to appear at this political theater," Holt said.
 
Rep. David McKinley said the no-show was a failure on the part of the administration.
 
"Clearly they are afraid their argument for revoking the Spruce Mine permit won't stand up to scrutiny," McKinley said. "In the meantime, the jobs of hundreds of hard-working coal miners hang in the balance."
 
Coalfield representatives
 
Four witnesses set to testify on the second panel did show. One was state Sen. Art Kirkendoll, D-Logan. The other was Maria Gunnoe, a community organizer from Boone County. Both presented very different views of the Spruce Mine permit and mountaintop removal mining in particular.
 
"Ladies and gentlemen, it is important that you understand this issue isn't just about a single mine permit, nor is it about a single community," Kirkendoll said in prepared testimony to Congress. "Some of you may believe this is just a 'regulatory matter,' but it is not. It is about real people and the impact these decisions by EPA and others like them are having on families and their communities in Logan County… my home … my state and across this nation."
 
The process of mountaintop removal is not devastating to the community, Kirkendoll explained, but is actually beneficial to property value.
 
"The development and diversification of our economy is severely limited by the lack of flat, readily developable land," Kirkendoll wrote. "Our people try to make a living, build homes and businesses on the only flat land available – the valley floors – but the problem is that these valley floors are also often 20‐year flood plains. Who would make a significant investment on a 20‐year flood plain? Who would build a home or business?"  
 
Gunnoe, the 2009 winner of the Goldman Environmental Prize and vocal opponent of mountaintop removal mining, had quite a different take on the community impact of the process.
 
"Why is it acceptable to depopulate our communities and culture, poison our water and air and leave us to die in a post mining waste land for temporary jobs and energy?" Gunnoe said in prepared statements. "You should ask yourselves:  Are we knowingly and willingly flipping on our lights and lining our pockets at the expense of the lives, livelihoods and the health of the people in Appalachia?  The answer to this, in my opinion, is yes you are." 
 
Gunnoe said the political notion of a "war on coal" is a lie perpetuated by the mining industry. Mountaintop removal, she said is "killing the people who work these jobs" and the people in the surrounding communities.
 
"Parts of my family first settled this area during the forced removal of the Cherokee known as the Trail of Tears," she said. "What the coal industry and our government is doing to our native communities in Southern Appalachia feels much like the second silent forced removal of our people."
 
The business argument
 
The other two witnesses on the panel addressed a different question than the West Virginia witnesses. Two major arguments unravel in discussion of the Spruce mine – mountaintop removal versus environmental preservation and agency authority versus business certainty.
 
Karen Harbet, president and CEO of the Institute for 21st Century Energy, US Chamber of Commerce, and Ross Eisenberg, vice president of energy and resources policy at the National Association of Manufacturers addressed the second question.
 
"This is not about whether coal, which supplies 40 percent of our electricity, should or shouldn't be part of our energy mix," Harbet said. "This case is about the rule of law and regulatory certainty and the type of regulatory regime that the law allows for and that we wish to have in the United States. Even more fundamentally, the outcome of this case will signal whether America is open for business and safe for long term investment."
 
Eisenberg said the uncertainty comes not only from actions such as the retroactive veto of the Spruce permit but also more generally in the form of other environmental regulations.
 
"In order to drive our nation's economic recovery, manufacturers need predictability from the regulatory process," Eisenberg said. "They must understand the rules of the road so they can make responsible, informed investment decisions. Lack of predictability is precisely the problem with the Spruce Mine case and is the main reason the NAM and so many other organizations found it necessary to enter the litigation against the EPA and in support of Mingo Logan."
 
McKinley, a special guest to the committee hearing, echoed similar sentiments regarding the business argument.
 
"Pulling the permit years after the effect set a chilling precedent for not only mining, but any business that relies on permits to operate," McKinley said in a written statement. "What bank would loan money to a manufacturer or a farmer knowing that the EPA could pull the plug on a whim? Imagine if a building inspector were to come to your home and tell you to move out because it's suddenly not up to code. The same logic applies here."