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Coal Mining Industry Is Having a Bummer of a Summer in the Federal Courts

Coal Mining Industry Is Having a Bummer of a Summer in the Federal Courts

This summer’s developments have rebuked the industry’s “Yes, Coal” message.

By Jim Hecker

Director, Environmental Enforcement Project

Rather than clean up the pollution caused by mining and burning coal, the coal industry has long denied that any serious environmental harm is occurring. It has also gone on offense, accusing the U.S. Environmental Protection Agency of conducting a “war on coal.” But its offensive has fizzled.

In particular, the industry targeted three decisions EPA made early in the Obama administration to crack down on coal mining pollution. In 2009, EPA adopted an “enhanced coordination process” that allowed EPA to look more closely at stream-filling permits before the U.S. Army Corps of Engineers approved them. In 2011, EPA issued a guidance document setting a benchmark for limiting discharges of dissolved salts from mine sites, because those pollutants were biologically impairing streams below mine sites. Also in 2011, EPA vetoed a permit for Spruce Mine, the largest mountaintop removal mine ever proposed in Appalachia. The mining industry sued EPA over all three decisions, and it won all three of its cases in the district court. The industry then trumpeted its victories as proof of EPA “overreach.”

But all three of the industry’s victories in the lower courts have now been reversed. The Spruce veto decision was reversed last year, and the Supreme Court declined to review that decision this spring. 

Today the D.C. Circuit reversed the other two decisions, leaving EPA with a clean sweep. So much for “overreach.” The upshot is that EPA’s crackdown on coal mining is back on track and the industry can expect more stringent requirements limiting the amount of contamination from mining operations. 

While EPA was defending these three policy decisions in the courts, environmental groups, with the help of Public Justice, have been attacking coal mining pollution directly by suing the offending mine operators. 

Last month, Public Justice won a landmark decision, the first of its kind, holding two mining companies liable for violating their Clean Water Act permits by discharging dissolved salts that have caused chemical and biological impairment in downstream waters. The judge in that case stated that “losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to [killing] the canary in a coal mine.” Public Justice has three other citizen suits lined up that raise the same type of claims against other mining operations in West Virginia.

In addition to discharging harmful levels of dissolved salts, mines also discharge selenium, a toxic metal that kills fish. States in Appalachia have been reluctant to regulate selenium, because it is costly to remove it from water. So citizens have again filed citizen suits to force mining companies to obtain permits regulating their unauthorized selenium discharges. 

One of industry’s defenses in these cases is that they are “shielded” by their permits from having to control selenium because they did not know selenium was present. But today the Fourth Circuit rejected that defense, finding that the “permit shield” is only available if the mine operator affirmatively demonstrates that it has disclosed the presence or absence of selenium in its permit application.  “Willful blindness” is not a defense, the court said, because it would “tear a large hole” in the Clean Water Act.

All in all, it has been a bummer of a summer for the coal industry, but a great summer so far for the environment and residents living in the Appalachian coalfields.