As seen in the April 30th issue of The State Journal
About a year ago, I wrote in these pages that efforts by the
federal Environmental Protection Agency (EPA) to restrict coal
mining in West Virginia have very little to do with trying to
enforce compliance with existing laws. (Opposition to Coal
Mining in W.Va.: It's Not About the Law, The State
Journal, June 12, 2009.) EPA's latest move -- issuance on
April 1, 2010 of a 31-page "Guidance" document on
"Improving EPA Review of Appalachian Surface Coal Mining
Operations under the Clean Water Act, National Environmental Policy
Act and the Environmental Justice Executive Order" -- should
be enough to remove any doubt about that. This and other EPA
actions over the last several months have continued to evince a
disdain on the part of that agency for the 'niceties' of
sound regulatory law.
The April 1 EPA memorandum imposes fundamentally new, far more
stringent standards for approving mining-related permit
applications under the Clean Water Act and other statutes
(effective immediately, but graciously open for
"comments" until December 1). It almost goes without
saying that this unprecedented step is premised on the
determination that the end (abolition of coal mining in the region)
justifies the means. That does not need to be said, because EPA
Administrator Lisa Jackson has already said it. Indeed, at the time
the memorandum was released, Administrator Jackson proudly declared
during a press conference that the effect of the April 1
"Guidance" is to create a regulatory program in which
"no or very few" valley fill permits -- which are
essential for all types of coal mining operations in West Virginia
-- will be granted. (EPA Salinity Standard Could Significantly
Reduce Mining, The State Journal, April 9,
2010.)
In much the same way that EPA and its allies have repeatedly
persuaded lower federal courts in West Virginia to bypass Congress
by reading into the Clean Water Act and the federal Surface Mining
Control and Reclamation Act things that were not there, EPA's
latest weapon in its war against the Appalachian coal industry
seeks to bypass the rulemaking process established by Congress in
the federal Administrative Procedure Act (APA). Normally, when an
agency wishes to propose a new regulatory standard, the APA
requires that public notice of the proposed new rule be provided,
along with an adequate opportunity for those who have an interest
to review it and submit comments on it. In this instance, EPA has
decided that its April 1 "Guidance" is just that; since
EPA was only issuing a memorandum to itself, it declared that the
memorandum is not "a regulation," because it "does
not impose legally binding requirements..." and therefore does
not need to be issued in accordance with APA rulemaking procedures.
Tell that to the coal companies who will receive "no or very
few" valley fill permits.
Even ordinary citizens who know little about the intricacies of
"robustly conduct[ed] analyses" of water quality or the
"emerging science" cited in EPA's memorandum can
recognize this for what it is. After all, if EPA had legitimate
reasons for seeking to eliminate nearly all coal mining in
Appalachia, one would expect that the agency would wish to make
those reasons known and allow a full, public evaluation of the
costs and benefits of such a move. Apparently, that was not deemed
to be an important step to take in this context.
The Obama Administration came into office promising a new era of
transparency in government. This is the kind of
"transparency" we can all live without.
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