Good Guys Win Big Battle in EPA’s War on Appalachian Coal Production

by William Yeatman on March 26, 2012

in Blog, Features

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Last week, property-rights advocates were ecstatic with the Supreme Court’s ruling in Sackett v EPA that citizens subject to EPA Clean Water Act “compliance orders” can have their day in court. Before, EPA had interpreted its power in a Kafkaesque fashion, whereby the Agency could levy fines for alleged Clean Water Act violations without any recourse for the accused. (My colleague Hans Bader wrote an excellent blog on the case here).

Because that high profile case captured all the attention, it was little noticed last Friday when property rights advocates won a similarly consequential victory. That afternoon, United States District Court for the District of Columbia Judge Amy Berman Jackson ruled that EPA overstepped its authority when it vetoed a Clean Water Act permit that had already been issued to the Mingo Logan Coal Company, a subsidiary of Arch Coal, for a mountaintop removal mining project in Logan County, West Virginia. The profound matter at hand was whether EPA could revoke a Clean Water Act permit, after it became the possession of the applicant. Had EPA carried the day, permit (i.e., property) owners nationwide would be subject to the cessation of business, depending on EPA’s whims.

Here’s the background: The Clean Water Act prohibits the discharge of pollution into navigable waters of the United States, unless the polluter has a permit. There are two kinds of permits: (1) Section 402 permits for “point-sources,” which are basically any singular discharge outlet for pollutants (like a pipe); and (2) Section 404 permits for “dredge and fill” activities, like mountaintop removal mining*. The former permits are issued by States after their permitting regimes are approved by EPA. The latter permits are issued by the U.S. Army Corps of Engineers, in accordance with guidance established jointly with EPA. Importantly, the Clean Water Act affords EPA a veto over the U.S. Army Corps of Engineers decision to permit.

The case that was decided last Friday pertained to a Section 404 permit that was issued in late 2009 by the U.S. Army Corps of Engineers to Mingo Logan Coal Company for the Spruce No 1 Mine in Logan County, West Virginia. EPA retroactively vetoed this permit on January 2011. Mingo Logan Coal Company then sued in the U.S. District Court for the District of Columbia. The coal company argued that the Clean Water Act only authorizes EPA to veto a pending Section 404 permit (i.e., while the Army Corps deliberates). EPA countered that the veto power was everlasting. Judge Jackson agreed with the petitioners. She wrote,

“Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps. EPA’s view of its authority is inconsistent with clear provisions in the statute, which deem compliance with a permit to be compliance with the Act, and with the legislative history of section 404.”

Notably, the Court did not rule on EPA’s scientific rationale for the permit veto. If Judge Jackson had ruled that EPA has the authority to retroactively veto a Section 404 permit, next she would have considered whether the veto itself was reasonable. In a 2011 study, I argued at length that the “science” behind EPA’s veto was unacceptably shoddy. In a nutshell, EPA claims that the Spruce No. 1 Mine would significantly harm wildlife up and down the food chain—including fish, salamanders, and birds–while in fact the Agency only presents evidence of harm to a single order of insects (Ephemeroptera, a.k.a. the mayfly). Moreover, the scientific literature suggests that overall insect biodiversity isn’t adversely impacted by surface coal mining in Appalachia. That is, hardier species readily thrive in the wake of the mayfly’s decline.

Judge Jackson’s ruling will no doubt come as a relief to the people of West Virginia. In May 2010, I attended EPA’s public hearing on its proposed veto at the civic center in downtown Charleston. The floor was packed with hundreds of people. Conservatively, I’d estimate that the crowd was 99 percent outraged by EPA’s “jobs for bugs” permit veto. I wrote about that experience here.

This is the second consecutive victory for the Appalachian coal industry over EPA in the U.S. District Court for the District of Columbia. Last October, Judge Reggie Walton ruled that EPA had overstepped its authority when it implemented an extra-layer of oversight over Clean Water Act permitting deliberations by States and the U.S. Army Corps of Engineers for applications from the coal industry in Appalachia.

*Pursuant to the 1977 Surface Mining and Control Act, mountaintop removal mining practitioners must recreate the approximate original contour of the mining area. To put it another way, they have to replace the mountaintop as best they can. However, it is an engineering impossibility to recreate the mountaintop perfectly. There is always leftover dirt and spoil. This “overburden” is deposited at the base of the mountain, becoming a “valley fill.” Invariably, valley fills bury intermittent streams that form in valleys whenever it rains. As such, a valley fill requires a Section 404 dredge and fill permit (because it “fills” intermittent streams).

Obama’s Malaise

by Myron Ebell on March 26, 2012

in Features

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There was a point in the latter half of President Jimmy Carter’s one term in office when he had become so ineffectual and clueless that I found it painfully embarrassing to watch him on television.  Luckily, I lived in England for most of the Carter presidency and didn’t own a television, so I didn’t have to cringe that often during the last year or so he was in office.

I remembered these feelings of embarrassment for our President and our country when I watched clips of President Barack Obama’s speech on energy policy in Cushing Oklahoma on Thursday, 22nd March, and saw the AP photos of the President walking and speaking in front of a large stack of what look to be three-foot diameter pipes used for building oil pipelines.  It seems to me that our President is on the verge of becoming ridiculous and irrelevant in much the same way that Jimmy Carter did in 1979 and 1980.

President Obama keeps repeating the same misleading and inadequate defenses of his energy policies.  The only difference this week compared to the weekly speeches he gave over the past four weeks is that he gave four in one week this week—in Nevada, New Mexico, Oklahoma, and Ohio.  He continues to insist that he has approved new pipelines everywhere.  This is simply false. Those decisions have been made without any involvement by the President.

President Obama also said that the strong bipartisan majorities in the House and the Senate that have voted to permit the 1700-mile Keystone XL Pipeline from Alberta’s oil sands to refineries in Texas and Louisiana “…decided that this might be a fun political issue, decided to try to intervene and make it impossible for us to make an informed decision.”  This is truly pathetic.  The President decided to make it a political issue when he over-rode the recommendations of the State Department and the EPA (after reviewing the application for three years) to permit the pipeline in order to placate his environmental pressure group allies.

The President also discussed in his speech at TransCanada’s pipe yard in Cushing, Oklahoma, TransCanada’s plan to go ahead and build the 485-mile section of the Keystone XL Pipeline from the hub at Cushing to the Gulf.  He then claimed: “And today, I’m directing my administration to cut through the red tape, break through the bureaucratic hurdles, and make this project a priority, to go ahead and get it done.”

The reason that TransCanada has gone ahead with this southern section of the pipeline is because it doesn’t cross an international boundary and therefore doesn’t require approval by the President.  Any red tape and bureaucratic hurdles that may exist within the federal government to building the southern section of the pipeline have been created by the Obama Administration.

President Obama has thus blamed someone else for his decision to block the Keystone XL permit and taken credit for approving a short section of it within the U. S. that is being built without his approval. His words have lost all relation to his deeds.

Chu Has No Clue

by Myron Ebell on March 26, 2012

in Blog

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Energy Secretary Steven Chu has appeared somewhat out of touch with reality since his first day on the job in 2009, but in the past two weeks he has moved entirely into a fantasy world of his own creation.   Earlier this month, the Nobel prize-winning Dr. Chu testified before the House Oversight and Government Affairs Committee and gave himself a grade of A-minus for his first three years as Secretary of Energy.  Last week at another House hearing he gave himself a little higher grade for his handling of gasoline prices.

Secretary Chu told Committee Chairman Rep. Darrell Issa (R-Calif.):  “The tools we have at our disposal are limited, but I would say I would give myself a little higher in that since I became secretary of energy, I’ve been doing everything I can to get long-term solutions.”

In the real world, Secretary Chu and his merry band at the Energy Department have pursued polices designed to raise gasoline and other energy prices.  This is intentional and not the result of their incompetence.  Dr. Chu said in 2008 before President Obama nominated him that gas prices needed to rise gradually to European levels.  That is, seven to ten dollars a gallon, most of which is tax.  One reason for much higher gas taxes is that is the only way to make the alternative fuels and technologies that Secretary Chu has been promoting cheaper than gasoline.

Secretary Chu defended his 2008 statement until two weeks ago, when he grudgingly conceded that it is no longer operative.  Testifying before the Senate Energy and Natural Resources Committee on 13th March, Chu said, “I no longer share that view.  Of course we don’t want the price of gasoline to go up. We want it to go down.”

His locution that he no longer shares that view is odd.  He didn’t share that view; that was his view.

Of course, Secretary Chu may have been implying that he and President Obama share the view that the gas tax would ideally be at least five dollars a gallon.  They both want gas prices to go down now because President Obama wants to be re-elected.

Antarctica: New Evidence Medieval Warm Period and Little Ice Age Were Global

by Marlo Lewis on March 23, 2012

in Blog, Features

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Did the Medieval Warm Period (MWP) and Little Ice Age (LIA) occur only in Europe, or were they global in scope?

This is a hotly debated question, because it is harder to make the case that the warmth of recent decades is “unusual,” “extraordinary,” or “unprecedented” and therefore something to stress about if global climate oscillates naturally between warming and cooling periods. The catastrophic anthropogenic global warming (CAGW) crowd tend to write off the MWP (~1000-1200 A.D.) and LIA (~1300-1850 A.D.) as regional phenomena, largely confined to Northern Europe. A new study finds evidence of the MWP and LIA in a region 10,000 miles south of Northern Europe: the Antarctic Peninsula. [click to continue…]

It’s Like Déjà vu, All over again

by William Yeatman on March 22, 2012

in Blog

Here’s a headline from today’s Energy & Environment News PM (subscription required):

…and here’s a Wall Street Journal headline from 1978:


Today, solar power accounts for a small fraction of one percent of U.S. energy needs.

Supreme Court Allows Challenge to EPA Power Grab, Cites CEI Brief in Sackett v. EPA; But Property Rights Still In Jeopardy

by Hans Bader on March 22, 2012

in Blog, Politics

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In recent years, the EPA has sought to block land from being used by claiming that vast tracts of seemingly dry land are actually “wetlands.”  The Clean Water Act gives it the power to regulate “waters of the United States.”  The EPA has interpreted that expansively to effectively mean “moistures of the United States,” treating perfectly ordinarily land as a “wetland” simply because water happens to occasionally flow downhill from it into a ditch or creek.  The four liberal Supreme Court justices largely bought this argument in the 2006 Rapanos case, so the Supreme Court is just one vote away from accepting this interpretation, which would render much of America a restricted “wetland” and financially ruin countless families.  Thus, property rights in America are hanging by a thread.

But yesterday, the flickering flame of property rights temporarily grew brighter. Rejecting the Obama Administration’s arguments, the Supreme Court held that EPA “compliance orders” restricting land use can be challenged in court if they are arbitrary and capricious — for example, if they are based on an erroneous bureaucratic interpretation of what a “wetland” is, that results in dry land improperly being declared an unusable wetland. In his concurring opinion, Justice Samuel Alito explained why such judicial review is essential: the EPA uses vague, inconsistent standards when it declares seemingly-dry land to be a wetland. As Justice Alito pointed out, “far from providing clarity and predictabil­ity, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concern­ing wetlands can only be made on a case-by-case basis by EPA field staff. See Brief for Competitive Enterprise Institute as Amicus Curiae 7–13.”  (Justice Alito was relying on an amicus brief submitted on behalf of a Washington think-tank, the Competitive Enterprise Institute (CEI), by environmental lawyer Theodore Garrett of Covington & Burling).

The E.P.A. has a practice of issuing “compliance orders” to property owners telling them to stop using their land and restore it to its prior condition, under penalty of $75,000 a day in fines, and declaring in such orders that such land is a federally protected wetland. It then waits months or years before actually suing the property owner to collect the fines, which accrue daily, potentially adding up to millions in fines. But in the meantime, it insists that the property owners can’t challenge its claim that their property is a non-usable wetland in court. If they want to take issue with its claim that their property is a “wetland,” they have to wait until the EPA sues them later on to collect the fines, after they’ve racked up potentially millions in fines under the compliance order.  The order doubles the fines that a judge can impose on the property owners when the EPA ultimately sues them, although if the judge later finds the land was not in fact a “wetland,” he can refuse to impose the fines. (In the absence of a “compliance order,” the maximum fine for developing a wetland is $37,500 a day; the compliance order adds another $37,500 per day, bringing the total to $75,000 per day.  Federal law has a broad and counterintuitive notion of what is a “wetland”: for example, in one court ruling, the government was allowed to declare a property to be a “wetland” even though it appeared dry, since water occasionally passed from it into a roadside ditch that in turn flowed into another ditch that flowed into a creek).

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Liberals Stand Up For Corporate Welfare

by David Bier on March 22, 2012

in Blog

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The Supreme Court’s decision in Citizens United to allow corporations to spend money on political activities has become a primary target for liberals in Congress. Sen. Bernie Sanders (I-VT) wrote this year that “this spending will fundamentally distort our democracy, tilting the playing field to favor corporate interests, discouraging new candidates, chilling elected officials and shifting the overall policymaking debate even further in the direction of giant corporate interests and the super-wealthy.”

Sen. Sanders was seconded by Sen. Chuck Schumer (D-NY), who said, “At a time when the public’s fears about the influence of special interests were already high, the Court’s decision stacks the deck against the average American even more.” Liberals, you see, want to defend the average American from corporate interests. Liberals want to stop special interest deals that “distort our democracy.” Liberals want to stand up to the “giant corporate interests” and “level the playing field.”

This fiction sells copies, but after last week, the true story was made plain: Congressional liberals voted overwhelmingly to keep “tilting the playing field,” but rather than the playing field of democracy, it was the playing field of the market. These liberals might not like corporate political spending, but they certainly don’t have a problem giving them a reason to spend.

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PETA Loves Primates (Unless They’re People)

by Matt Patterson on March 21, 2012

in Blog

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Liberals love to castigate conservatives as “anti-science.”  But when it comes to doing lasting harm to valuable, life-saving scientific research, no one can top the ultra-liberal People for the Ethical Treatment of Animals (PETA).

Medical researchers have long relied on animal testing to advance their work, especially studies involving non-human primates.  In 2011, over 18,000 monkeys were shipped into the United States for research purposes, most of them from China.

But last year China Southern Airlines cancelled a shipment of macaques bound for Los Angeles after suffering a withering public pressure campaign from PETA.  “This was part of our larger campaign to disrupt the flow of primates to US labs,” boasted Justin Goodman, associate director of the laboratory investigations for PETA in Washington DC.  Other airlines are facing similar pressure, including Air France, the last major European line to carry research primates.

PETA says that imports are not as necessary as they used to be because Western labs already have large, breeding primate populations.  But as the prestigious scientific journal Nature reports:

Breeding the animals in the United States instead would be problematic: infrastructure and labour costs are much higher than they are in Asia, and colonies are much more likely to become the targets of animal activists. And moving the animals by sea is a non-starter because of the deleterious effects of the six-week trans-Pacific journey on the animals’ health.

Needless to say, PETA’s efforts to shut down primate importation has sent chills through the biomedical research community.  “It’s unfortunate that some airlines have chosen to capitulate to a small number of individuals with an agenda who aren’t truly representative of the general public,” says Matthew Bailey, vice-president of the National Association for Biomedical Research.

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General Electric CEO Jeff Immelt Sours on President Obama

by Brian McGraw on March 20, 2012

in Blog

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Jeff Immelt, chairman and CEO of General Electric, has gone sour on President Obama:

Back when he agreed to advise the Obama administration on economics, General Electric CEO Jeff Immelt told friends that he thought it would be good for GE and good for the country. A life-long Republican, Immelt said he believed he could at the very least moderate the president’s distinctly anti-business instincts.

That was three years ago; these days Immelt is telling friends something quite different.

Sure, GE has managed to feast on federal subsidies, particularly the “green-energy” giveaways that are Obamanomics’ hallmark.

But Immelt doesn’t think he’s had anywhere near as much luck moderating the president’s fat-cat-bashing, left-leaning economic agenda of taxing businesses and entrepreneurs to pay for government bloat.

Friends describe Immelt as privately dismayed that, even after three years on the job, President Obama hasn’t moved to the center, but instead further left. The GE CEO, I’m told, is appalled by everything from the president’s class-warfare rhetoric to his continued belief that big government is the key to economic salvation.

This is rich. While I happen to agree with Immelt that increasing the size and scope of government is not in our nations best interests, GE/Immelt are an infamous symbol of crony capitalism, where big government and big business get together and rig the game to enrich themselves while the American taxpayers get the shaft. In General Electric’s case this consists of support for all sorts of tax credits and subsidies for wind energy production, support for the Waxman-Markey cap and trade bill, spending almost $40 million lobbying in 2010, and the list goes on. [click to continue…]

Dim Duo Done in by Dimock Data [updated 6:46PM with comment from Pennsylvania DEP]

by William Yeatman on March 19, 2012

in Blog

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Last Thursday, the Environmental Protection Agency conceded that preliminary lab results from samples taken from wells in Dimock, Pennsylvania indicate that drinking water there has not been contaminating by hydraulic fracturing drilling.

The news is embarrassing to both agit-prop film director Josh Fox and EPA.

For the fabulist Fox, the Dimock lab results are yet another official rebuke of his terrible, fact-free, Oscar-nominated documentary Gasland. Already, Colorado state officials debunked Fox’s false claims that groundwater in Colorado had been poisoned by hydraulic fracturing. Now, a federal agency is suggesting that Fox again misidentified the cause of one of his fracking cause-célèbres—he has long accused the gas industry of contaminating well water in Dimock with toxic chemicals.

For EPA, the Dimock results are egg on the face. That’s because the Agency had decided to test the Dimock water over strong* objections from Pennsylvania officials. In early January, Pennsylvania Department of Environmental Protection Secretary Michael Krancer wrote a letter asking EPA not to second-guess the State’s handling of allegations that gas drilling had contaminated well water in Dimock. Secretary Krancer warned EPA that it would be acting despite the Agency’s possessing only “rudimentary” knowledge of the situation. In a critical response to the letter, EPA Administrator Lisa Jackson insinuated that Pennsylvania was failing to ensure the protection of its own citizens. EPA’s preliminary results suggest that Pennsylvania is capable of ensuring safe, responsible drilling, without the Agency’s oversight.

*[Updated 6:46 PM–I received a nice email from the Pennsylvania Department of Environmental Protection informing me that the situation is more complex than I had thought. While the DEP does feel EPA has overstepped its bounds, the Department is very much willing to work with EPA to ensure that Dimock water is safe to drink. I’ve crossed out the word “strong” in the second sentence of the paragraph above because it is too strong a modifier: They disagree, but it’s not combative. Here’s the official DEP press statement, which demonstrates the nuance of the matter.

DEP just received EPA’s voluminous package today and we are reviewing it. We will take more time to fully evaluate all the information and data that EPA has presented, which it says is behind the action it proposes taking and the requests it is making. Our review, so far, tells us that EPA does not seem to have presented any new data here. More than a year ago, DEP’s enforcement action addressed this issue and ensured funds were set aside to resolve the water quality issues for these homeowners. Funds were set aside for each homeowner to have a water treatment system installed. The system would address parameters EPA references here, including arsenic and manganese, and would provide water that meets and exceeds safe drinking water standards. We agree that additional sampling should be conducted in Dimock and we are actively working with EPA to conduct additional sampling at the affected homes and at 57 other residences.]

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