Update: EPA’s War on Appalachian Coal

by William Yeatman on April 5, 2011

in Blog, Features

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I’ve been an outspoken opponent of the EPA’s war on Appalachian coal production. See here, here, here, and here.

In particular, I’ve sought to shine a spotlight on the EPA’s outrageous crackdown on saline effluent from surface coal mines. The EPA argues that this salty discharge is an illegal violation of the Clean Water Act, because it harms an order of short-lived insects known as the mayfly. The science suggests that the total number of insect species doesn’t decrease downstream of surface mines, as hardier insects readily assume the niche vacated by the mayfly. Nonetheless, the EPA alleges that the loss of the mayfly alone is sufficient to violate the Clean Water Act’s narrative (qualitative) water quality standards. The mayfly is not an endangered species.

A year ago, the EPA issued guidance for quantitative salinity water quality standards, effective immediately. According to one mining engineer, they set the bar so low that you couldn’t wash a parking lot without violating the Clean Water Act. Remember, the President had campaigned on a promise to “bankrupt” coal; this was the fruition of that promise. Even EPA Administrator Lisa Jackson conceded that new surface coal mine permits in Appalachia were unlikely under the terms of the April guidance.

Last Friday, the EPA was scheduled to issue final guidance documents for quantitative salinity water quality standards. However, Friday came and went, and nothing happened. On Saturday, EPA sent out notice that it will need more time to finalize the guidance documents. It also said that, “The Office of Management and Budget will conduct an interagency review process before final guidance is issued later this Spring.”

The OMB’s participation is interesting. It could be routine; OMB, and, by extension, the White House, has the final say on regulations. Yet, if it were routine, I don’t know why EPA would mention it.

To be sure, I don’t think that OMB’s involvement was precipitated by Obama’s concerns of overreach against coal. Rather, I guess that OMB’s conspicuous participation is meant to guard against allegations of procedural overreach. This Administration has been catching a lot of flak for using guidance docs in lieu of formal rule makings (from an administrative standpoint, the former is less cumbersome than the latter). Maybe the OMB involvement is meant to bolster the record, and thereby fend off allegations of Administrative Procedure Act violations.

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