State challenges EPA plan to reduce mining impacts
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CHARLESTON, W.Va. -- West Virginia regulators have sued the federal government, alleging the Obama administration skirted public involvement requirements as it implemented plans to reduce the damaging impacts of mountaintop removal coal mining.
Department of Environmental Protection lawyers also allege federal regulators have "invaded and usurped the authority" of West Virginia to police pollution from the state's coal industry.
Private attorneys, hired months ago by the DEP, filed their 52-page lawsuit in U.S. District Court in Charleston several hours after Gov. Joe Manchin announced plans for the suit during a news conference at the state Capitol.
"It's a shame when you have to take action against your own government, but sometimes it has to be done," Manchin said to reporters gathered in a room full of coal industry officials and United Mine Workers representatives.
The lawsuit targets two actions taken as part of the U.S. Environmental Protection Agency's promise to take "unprecedented steps" to reduce the environmental impacts of mountaintop removal across the Appalachian coalfields.
First, the suit challenges EPA's June 2009 agreement with the federal Army Corps of Engineers to more closely scrutinize Clean Water Act "dredge-and-fill" permits issued by the corps through a process known as the "Enhanced Coordination Procedure," or ECP.
Second, the suit seeks to block EPA from using water discharge permit guidance issued in April 2010 to limit pollution that scientists believe dangerously increases the electrical conductivity of streams below mining operations.
EPA Administrator Lisa P. Jackson announced these moves in response to a growing body of science that shows mountaintop removal is causing widespread and irreversible damage to Appalachia's forests, water quality and communities.
Coal industry supporters argue that mountaintop removal is highly efficient, that EPA's water pollution guidelines are practically impossible to meet, and that the Obama actions also affect underground mining and coal preparation plant permits.
In their lawsuit and at Wednesday's press conference, state officials criticized EPA's tougher standards -- DEP lawyer Ben Bailey said they are "focused on mayflies as opposed to miners" -- but also acknowledged the suit deals less with the substance of the federal actions and more on complex procedural issues.
"We're not debating about those standards today," said DEP Secretary Randy Huffman. "We're debating the process they've used to implement those standards."
Specifically, the lawsuit alleges, among other things, that EPA violated federal law by implementing its new "conductivity" guidance before completing an ongoing process of public and scientific review. The suit also argues the enhanced EPA permit reviews amount to a federal rule that should also have undergone public review before it was implemented.
"With these actions, EPA and the corps have demonstrated a brazen disrespect for the notice-and-comment rulemaking that forms the backbone of proper regulatory action by giving the states and interested parties an opportunity to comment upon proposed rules before implementation," the lawsuit states.
But Pat Parenteau, an environmental law professor at Vermont Law School, said such a case might be tough to make, given that EPA has not taken a final action yet, such as issuing final guidance or actually rejecting a permit that it reviewed.
"A court isn't likely to intervene at this early juncture," Parenteau said. Last week, EPA lawyers made that very argument in seeking to dismiss a similar lawsuit filed in July by the National Mining Association.
Huffman said DEP officials have been waiting for EPA to take some final action that would legally easier to challenge, but finally decided they had to move forward anyway because of continued delays for mine operators looking to obtain new permits.
Manchin noted that of 23 West Virginia permit applications identified a year ago by EPA for closer review, only two have since received final approval by EPA and the Corps of Engineers.
EPA records show that mine operators have withdrawn six of the other applications, and that EPA's more detailed review on the other 15 has not begun because federal officials are waiting for companies to provide more information that EPA requested.
In the case of the two permits that have received final approval, deals worked out by EPA officials allowed operators to mine much of the coal they were after, while also greatly reducing the water quality impacts.
"EPA continues to be willing to work with industry to reach common sense agreements allowing them to mine coal while avoiding permanent environmental impacts and protecting water quality," said EPA spokesman Brendan Gilfillan.
Manchin ordered the lawsuit against EPA as he enters the final month of a campaign for U.S. Senate against Republican John Raese, who has argued the Democratic governor would be a "rubber stamp" for President Obama if voters send him to Washington.
At his press conference, Manchin invoked "the spirit of Sen. Robert C. Byrd," who held the Senate seat for decades. The governor took out a copy of the U.S. Constitution and read the 10th Amendment, which reserves for states and the people rights not specifically granted to the federal government.
Bailey, the DEP's attorney, later said the lawsuit does not specifically raise 10th Amendment legal claims.
Raese campaign spokesman Kevin McLaughlin said in an e-mail to reporters that Manchin had taken "absolutely no legal action against the EPA's regulations until he dropped behind in the polls just weeks before the election."
Bill Raney, president of the West Virginia Coal Association, said, "I'm pleased that we finally got to the point of filing a suit. EPA will not issue permits. They will not let anything go. We've got to get to the point of certainty."
Joe Lovett, executive director of the Appalachian Center for the Economy and the Environment, said the lawsuit against EPA appeared to be aimed only at helping Manchin's Senate campaign. "This is pure grandstanding," Lovett said.
Reach Ken Ward Jr. at email@example.com or 304-348-1702.