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Environmental, Natural Resources, & Energy Law Blog

De-Regulation of Mountain Top Removal Mining - Tess Jacobsen

August 19, 2020
  • Mountaintop Removal Mining in West Virginia. Photo by David Ste

                          DE-REGULATION OF MOUNTAINTOP REMOVAL MINING

                                                    Tess Jacobsen - LLM Student

 

I. Introduction

“Strip mining on steroids” is the term that has often been used to describe the practice of mountaintop removal coal mining (MTR) that is ripping through the Appalachian Mountains.

Over 2,000 miles of streams and headwaters have been buried and destroyed due to this process. Streams that provide drinking water to millions of Americans. Mountaintop removal mining has flattened an area the size of Delaware and routinely blows off 800-1,000 feet from a mountain.1 The communities in these areas have disastrous flooding and face many health problems. On top of all these effects, forests and habitat are destroyed in ways from which they are unlikely to ever recover.

Even with all these devastating effects playing out in the Appalachian Mountains the government has failed to take action to try and mitigate these problems. In fact, the Trump administration has continuously reined back regulation put in place by the Obama administration. One huge way de-regulation has happened is through the repeal of the Stream Protection Rule. Trump justifies this de-regulation by stating it will revive the coal industry, in turn creating more jobs. However, the deregulation of mountaintop removal mining under the Trump administration will result in more health risks for both humans and the environment, without the promised revival of the coal industry.

II. What is mountaintop removal mining?

Mountaintop removal mining is exactly what its name would imply. It is the destructive technique employed by coal companies in Appalachia of razing an entire mountainside. Trees in some of the oldest forests in the nation are ripped out of the ground and set ablaze. Explosives are put into deep holes dug into the ground and blast massive amounts of rock and debris into the air in order to reach the coal seams below.2

 

After the explosives blow the mountain apart, draglines, huge machines that can weigh up to 12 million pounds and be as large as a city block, push debris from the explosion away from the mining site. The debris is often pushed into nearby streams and valleys, called valley filling, and contaminates water sources for local cities and towns while destroying the habitat in the area.3

III. How Mountaintop Removal Mining Affects the Environment and Human Health

   a. The environment

President Trump has pushed for the idea of “clean coal” throughout his election campaign and presidency. However, there is no such thing as “clean coal.” Mountaintop removal mining destroys habitat and alters the landscape, burning coal emits mercury and carbon dioxide, and coal ash waste is deposited into unlined ponds and impoundments which leak into waterways. Clean coal comes from the narrow idea of carbon capture, technology that is cost-prohibitive for most operations.4 Smart of President Trump to seize on wording such as this, which remains undefined, and use it to promote any and all coal-related activities, including mountaintop removal mining, arguably the most unclean of all coal operations.

Watersheds are the most severely impacted by MTR. Sedimentation from “spoil”, unwanted rock leftover from mining activities, enters the streams and causes contamination and stream degradation that affects aquatic wildlife by polluting the water and even permanently covering some streams.5

b. Human health

Mining runoff is also extremely detrimental to human health. The runoff transports dissolved metals from coal mining activities. The runoff affects water supplies such as well- water, municipal water, and affects food sources through eating metal contaminated marine life.6 A scientific study done in 2010 showed a significant relationship between cancer morality rates and areas which are most affected by surface mining in West Virginia, even when taking into account other factors such as smoking and poverty.7 Lead and arsenic of found in tap water throughout communities located near coal mining sites.8 In addition to quashing the SPR, Trump’s administration also eliminated the EPA funding that would have looked into the additional health risks of MTR on local communities.

In addition to the obvious effects of surface mining to human health, there is an environmental justice impact rarely considered by lawmakers. The communities that are dependent on coal mining show higher mortality rates, total poverty, and child poverty than non-dependent communities. Few miners are able to rise above this poverty and unemployment continues to increase. The unemployment is not due to lack of coal or because of new regulations, as discussed in section V. Coal mining is making corporations and investors wealthy, but the miners continue to lose jobs and live below the poverty line, in

towns where everything from your home to the local schools and stores, are owned by the coal company. The local communities have very little power to move away from coal mining, which is one reason they cling to this lifestyle, despite the current mining practices literally killing them and leaving them unemployed.9

IV. Stream Protection Rule

  1. History

The Stream Protection Rule (SPR), enacted at the end of the Obama administration, was designed to prevent the dumping of coal waste into waterways by coal-mining operations.10 The Rule was not meant to stop mountaintop removal mining, but rather to protect streams and valleys and as a way to update the prior regulations, which were thirty-three years old and enacted prior to surface mining becoming a practice.

President Trump repealed the Stream Protection Rule on February 16, 2017. He used a formerly rarely-used, though growing in popularity especially for environmental regulation, federal statute called the Congressional Review Act (CRA).11 The CRA allows a new congress to review a “major rule” passed by the prior Congress within two months of the end of the prior Congress’s session. The effects of using CRA to void a regulation is permanent. Once a rule is repealed through CRA the agency is blocked from ever introducing the rule again in “substantially the same form.”12 The only way to get a similar rule passed is by later legislation enacted by Congress.13 President Trump and Congress using the CRA to repeal the Stream Protection Rule means sentencing communities to a lifetime of polluted water and the guaranteed continuation of the destruction of the beautiful Appalachian Mountains.

The CRA does not define the meaning or scope of “substantially similar” for future regulations. Since a statutory definition is lacking it is open to debate on how to decide if a regulation is “substantially similar”. It could potentially only require the changing of the text in a rule but would more likely require a change to the substantive change to the rule. For example, the only time an agency as reissued a rule struck down by the CRA was in 2019. The agency stated when it reissued the rule that the new rule had a “substantially different scope and fundamentally different approach.”14 As of this time, this reissuance of this rule has not been challenged.

The CRA is also silent on who decides what “substantially similar” means. In fact, the decision may be up to an agency or Congress to determine what rules are “substantially similar.” The CRA states “no determination, finding, action, or omission under this chapter shall be subject to judicial review,”15 thereby limiting a court’s ability to review actions, including whether a rule is “substantially similar.” Courts have been hesitant to hear cases challenging an agency’s compliance with the CRA in general because of this provision. Additionally, no court, at this time, has heard a case on whether compliance with the “substantially similar” provision is subject to judicial review or not.16 Agencies are not required to provide an explanation when reissuing a rule, However, if an agency provides an explanation for why the reissuance of a rule is not substantially similar to the previous rule, the agency’s rule may have a better chance of surviving.

b. Consequences of repeal

The SPR was not a drastic rule and many environmentalists argued that it was not enough. The effects of this rule would not have been felt by anyone outside of the Appalachian area because it was meant to protect waterways for these communities. The rule simply required coal-mining companies to monitor streams prior to, during, and after surface mining activities, including MTR. The rule also required companies to create buffer zones around affected streams. The rule by no means resulted in the barring of mountaintop removal mining, it simply updated the prior legislation that was put in place before surface mining activities were even a thing.

Because the SPR was not a drastic rule, it could be said the repeal has little consequences.

However, that is untrue because repealing the SPR means the controlling legislation is the Surface Mining Control and Reclamation Act of 1977 (SMCRA). SMCRA was focused on restoring land to its pre-mined condition, not on the effects of mining on water quality. SPR would have filled the gaps created by SMCRA, but by repealing SPR the federal government has left the regulations up to the state governments. However, state governments have not opted to increase regulation on coal operations, partly because of the coal companies’ successful lobbying efforts. Further, state governments have consistently failed to enact water quality standards and are unable to fund studies that look into the health effects of coal mining. The Obama administration recognized this and created monitoring regulations through the SPR and provided funding for studies into health effects, but the Trump administration has decided these communities do not deserve this funding or these regulations.

V. The Decline of Coal Mining

  1. Why the repeal hasn’t created new jobs

The propaganda around the idea that coal means jobs is outdated and not supported by the evidence. For example, a study done in 2015 by Duke University showed that between 2008- 2012 electricity generated by coal declined by 24 percent while alternative energy from natural gas, wind, and solar grew by 39 percent, 154 percent, and 400 percent. “these changes led to a nationwide loss of 49,435 jobs for the coal industry but were offset by an increase of 125,000 jobs in natural gas, wind, and solar industries during the same time period.” And the losses in the coal industry had nothing to do with the Stream Protection Rule. Instead, the losses, according to the study, were attributable to the economic recession, fuel prices, and EPA regulations on carbon emissions. Even with de-regulation happening industry analysts still say the same “existing forces will continue to have a major effect on the coal industry.” For example, practices such as MTR are meant to reduce the number of coal workers needed to mine the coal. The statistics with coal mining show no significant relationship between coal mine size, the mining, and direct employment, showing no support for the argument that more coal equals more jobs.17

Therefore, the available evidence all points to the fact that the de-regulation on coal mining will not only have any affect, or a minimal effect, on job creation. However, the deregulation will cause more devastation for the Appalachian Mountains and the communities who call this gorgeous area home.

VI. Why regulation is needed

The health impacts on communities, not to mention the environmental impacts, are the biggest reasons MTR needs to be regulated. Even generational coal miners are seeing the results of mountaintop removal mining and wanting to see it more heavily regulated. For example, Chuck Nelson, who is a fourth-generation coal miner and worked in the mines for thirty years, states “the first feeling when you see something like this [mountaintop removal mining] is anger. It makes you angry, seeing that they are allowed to do something like that to the place you lived. It really made me mad to see a mountain that was always there, my whole life long, being just blown away.”18

Coal communities are developing illnesses from unlined dams being filled with coal ash waste, called slurry, and slurry being leaked into the local waterways. National regulation is needed because the current classification of coal ash waste by the EPA as a solid or household waste means most of the regulation falls to state and local governments, who are refusing to regulate the industry that pays their bills. Many scientists feel that coal ash should be regulated under the Resource Conservation and Recovery Act (RCRA) as a hazardous waste because of its inherent toxicity. The current classification as a solid waste means RCRA establishes guidelines for states in handling and storing, but not mandatory minimum requirements, as a classification as a hazardous waste would do.

VII. Current attempts to regulate

Some representative in Congress are not sitting idly by while the coal mining industry goes unregulated. Legislation introduced in the house nearly a year ago by Rep. John Yarmuth (D-KY) would halt all mountaintop removal mining permits and expansion of existing mines. However, the Appalachian Community Health Emergency Act has failed to move beyond subcommittee meetings. Given the fact that a rule allowing the continuation of MTR, which only required additional monitoring, was repealed a rule such as the proposed one by Rep. Yarmuth would be unlikely to pass in Congress.19

Further, even if a new administration is elected this year, the agency would be unable to propose a similar rule to the SPR because it was repealed using the permanency of the CRA. However, the CRA only prohibits the same or “substantially similar” rule from being promulgated. Since the SPR was so limited in what it was requiring, the unanswered question is whether the promulgation of new regulations that limit MTR or even ban it, would be “substantially similar”. Courts have not answered this question and, if a new administration is elected, it will be interesting to see how coal operations may be limited in the future.

New regulations which are stricter than the Stream Protection Rule would likely be successful against claims that the rules are substantially similar. Since the SPR dealt with water quality monitoring a new rule which required the maintenance of water quality standards, or even the improvement of those standards, would likely not be substantially similar to the SPR. However, given what a hot topic coal mining is, I think any rule that is issued by an agency with a new administration would likely find its way to court. Though at least then we would have a decision on who decides and what constitutes “substantially similar” under the CRA.

Other avenues explored by environmental groups to limit MTR effects have been to use statutes such as the Clean Water Act. These cases have had limited success regarding overarching regulations but have resulted in certain communities receiving payouts or certain coal companies being required to clean up in certain areas. Further, Clean Water Act permits are still regulated by States and, as stated above, states have not been the most environmentally progressive. A new administration could also push for coal ash to get changed to a hazardous waste under RCRA, as there is to back up that decision and it would establish minimum requirements for states, which would ensure all states are at least providing minimum safety standards.

VIII. Conclusion

Mountaintop removal mining continues to have devastating effects on communities and the environment. The repeal of the Stream Protection Rule sets mining regulation back forty plus years and fails to provide the revival of the coal industry that the Trump administration promised. The cut back on funding to conduct studies into MTR effects proves that the Trump administration has no concern for the local communities and, instead, uses propaganda about creating more jobs to further a dying industry’s objectives. Studies show jobs lost in the coal industry could be found in alternative fuel industries such as natural gas, solar, and wind.

Perhaps a new Congress will seize on the opportunity presented to end mountaintop removal mining, but the future is looking a bit bleak unless people learn to recognize the truth in the science and the lies in propaganda.

1 Earthjustice, What is Mountaintop Removal Mining?, https://earthjustice.org/features/campaigns/what-is- mountaintop-removal-mining (last visited March 14, 2020).

2 Id.

3 Id.

4 BRIE D. SHERWIN, REGULATING COAL ASH WASTE IN THE TRUMP ERA, 37 Stan. Envtl. L.J. 75 (2010), available at

https://advance.lexis.com/document?crid=b96dd427-5308-4e0d-9e62- 576440f7a8db&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical- materials%2Furn%3AcontentItem%3A5RXX-J3T0-00CT-V0FY-00000- 00&pdcontentcomponentid=139090&pdmfid=1000516&pdisurlapi=true. 5 Id.

6 Id.

7 Id.

8 Sarah Saadoun and Corina Ajder, ARSENIC AND LEAD IN TAP WATER: WHAT TRUMP’S DEREGULATION CRUSADE

REALLY MEANS FOR MINING COMMUNITIES, Newsweek, September 16, 2019, available at, https://www.newsweek.com/arsenic-coal-ash-lead-water-mining-deregulation-meatpacking-trump-1459458. 9 Human Rights Watch, The Coal Mine Next Door, (2018), available at

https://www.hrw.org/report/2018/12/10/coal-mine-next-door/how-us-governments-deregulation-mountaintop- removal-threatens.

10 Id.

11 Id.

12 Congressional Review Act, 5 U.S.C.S. § 801(b)(2) (1996).

13 Id.

14 Congressional Research Service, The Congressional Review Act: Frequently Asked Questions (2020), available at

https://fas.org/sgp/crs/misc/R43992.pdf.

15 5 U.S.C. §805.

16 CRA FAQ, supra note 17.

17 Id.

18 Sherwin, supra note 4.

19 Earthjustice, Earthjustice Endorses Legislation to Protect Families from Mountaintop Removal Mining Health Effects, (April 5, 2019), available at https://earthjustice.org/news/press/2019/earthjustice-endorses-legislation-to- protect-families-from-mountaintop-removal-mining-health-effects.

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