Barack Obama swept into the Presidency promising a new political order, one characterized by “transparency” and “openness.” Three years later, the President’s lofty campaign promises are belied by the Environmental Protection Agency’s record of suppression.

Federal agencies cannot issue regulations willy-nilly; rather, they are bound to rules stipulating administrative procedure, in order to ensure the voice of affected parties is heard. Obama’s EPA, however, evinces a troubling tendency to circumvent these procedural rules. Regulated entities are being subjected to controversial, onerous regimes, before they even have the opportunity to read the rules, much less voice an objection. The wayward Agency is exercising an unanswerable power, straight out of a Kafka novella.

Consider, for example, EPA’s Cross-State Air Pollution Rule (CSAPR) as it pertains to Texas.  In the August 2010 proposed CSAPR, the Lone Star State was found to be in compliance with the regulation’s particulate matter emissions limits. Without notice, in the July 2011 final CSAPR, EPA imposed on Texas the harshest particulate matter emissions limits of any State. The technology required by EPA’s final CSAPR requires three years to install, but EPA gave the State only 6 months to do so. Recently, the non-partisan operator of Texas’s power grid warned that the CSAPR could lead to blackouts.

Texas was left out of EPA’s deliberations for the CSAPR, but the State will have a voice before the judicial system. In late December, a federal district court in Washington, D.C. stayed implementation of the CSAPR, which was supposed to take effect on January 1, until the court decides on the merits of Texas’s allegations that EPA violated federal laws regarding proper administrative procedure.

The previous example is as blunt a violation of due process as one could imagine. Elsewhere, like in Appalachia, EPA has proven subtler. Mountaintop mining is sanctioned by the 1977 Surface Mining Control and Reclamation Act, and it essential for the competitiveness of Appalachia’s coal industry. Yet it is loathed by environmentalists, which is why EPA has had this industry in its cross-hairs since President Obama took office.

To that end, EPA alleges that West Virginia and Kentucky’s existing water quality standards are unacceptable because they insufficiently protect an insect (the mayfly) from surface coal mining operations. However, EPA already has approved these states’ Clean Water Act permitting regimes, and this complicates matters for the Agency. For environmental federalism conflicts such as this, the Clean Water Act stipulates a resolution process, one that allows states significant participation. EPA, however, didn’t want to delay its crackdown on mountaintop mining removal. Therefore, in April 2010, EPA issued new water quality standards that were officially “non-binding,” but which EPA nonetheless informed States to follow when it issues Clean Water Act permits. And if they do not, EPA has demonstrated that it will veto permits thus granted. The result is that West Virginia and Kentucky are beholden to a regulatory regime characterized by what Rep. Nick Rahall (D-West Virginia) describes as “do or dare permits”: Appalachian States must follow EPA’s “non-binding” guidance, or risk EPA’s veto.

While West Virginia and Kentucky have been shut out of EPA’s deliberations on new water quality standards, they will have their day in court. These States sued EPA, and this spring a federal district court in Washington, D.C. will decide on the merits of their allegations that EPA violated administrative procedure laws in its rush to halt mountaintop mining removal.

EPA is being similarly sneaky in its dealings with New Mexico on a visibility protection policy pursuant to the Clean Air Act. Instead of relying on “non-binding” guidance documents in order to suppress input, EPA is claiming that it has no choice but to ignore New Mexico, due to deadlines established by environmentalist special interest lawyers.

Here’s the background: Under the Regional Haze provision of the Clean Air Act, States are required to improve the view at federal National Parks and Wilderness Areas. On June 2, the New Mexico Environmental Improvement Board unanimously approved a Regional Haze plan that would meet the federal law and EPA’s own rules, at a cost of $34 million.

EPA, however, refused to even consider New Mexico’s visibility strategy. On August 5, the Agency imposed a Regional Haze plan that would cost New Mexico ratepayers $370 million–a nearly tenfold increase over those approved by New Mexico officials. EPA claimed that it did not have the time to consider the state’s plan, because it had to act before an August 22 deadline established by a consent decree with WildEarth Guardians, and environmental litigation organization. At best, EPA’s claim that it had no discretion is malarkey—it has plenty of legal latitude, and EPA’s claim to the contrary is absurd. At worst, this is an incidence of wink*wink* consent decrees, whereby EPA and environmentalist litigation outfits enact policy in the court-house, instead of having to deal with the rigors of proper administrative procedure.

In either case, the result was the same: EPA refused to consider New Mexico’s plan. The state may have been shut out by EPA, but it will be heard by a group of judges. New Mexico has a pending case against EPA in the 10^th federal Circuit Court of Appeals in Denver, Colorado.

For rule-of-law proponents like me, the silver lining is EPA likely will get spanked in the courts. Even so, the country loses, because the President’s campaign talk about transparency and openness has been exposed as mumbo-jumbo.

Last Thursday, the Water Resources and Environment Subcommittee of the House Transportation Committee held a hearing on “Environmental Protection Agency Mining Policies: Assault on Appalachia.” Video and written testimony are available here. For detailed descriptions of the EPA’s outrageous war on Appalachian coal production, click here, here, or here. Suffice it to say, EPA has subverted the Administrative Procedures Act to enact a de facto moratorium on mining. It engineered a new Clean Water Act “pollutant,” saline effluent, which the EPA claims degrades water quality downstream from mines by harming a short lived insect that isn’t an endangered species. The hearing on Thursday was part 1; this Wednesday, the subcommittee is scheduled to hear from EPA administrator Lisa Jackson.

I attended the hearing, and at the media table, I picked up a Sierra Club “Beyond Coal Campaign” press release, by Director Mary Anne Hitt. It is an excellent window into the lying and exaggerations frequently employed by environmental extremists in order to demonize coal. Below, I reprint the entire press release, sentence by sentence (in bold), each followed by a rebuttal (in italics).

Sierra Club: “This Committee’s leadership is trying to stack the deck against Appalachian miners, families and businesses.”

Stacking the deck!? This is absurd. To be sure, all four witnesses before the Subcommittee were opposed to the EPA’s war on Appalachian coal, but that was by BIPARTISAN agreement. Indeed, the only Democrat to show up was Rep. Nick Rahall (D-WV), the Ranking Member of the full Committee, who opposes the EPA’s machinations more than Republicans, due to the fact that his State is the largest coal producer in Appalachia, and is, therefore, harmed most.

[Update, May 11, 1:57 PM. I was mistaken that Rep. Nick Rahall was the only Member of the Minority Party to attend the hearing. Subcommittee Ranking Member Timothy Bishop (NY) gave an opening statement and then left. I got confused because Rep. Nick Rahall took his seat. Also, Rep. Jason Altmire came in after testimony was heard.

That said, the Hearing was bipartisan in unanimous fashion. Rep. Bishop spoke of a "pendulum" that had swung too far; Rep. Altmire, at today's hearing [part 2], thanked the first panel, and then noted “our support as a group to cultivate our own resources” and further promised to “do anything we can do to lesson the burden”; also today, Rep. Laura Richardson (D-CA) said that, “anytime something like this rises to the level of the House, it suggests there’s a problem.”]

Sierra Club: “Despite the severe threats that mountaintop removal coal mining poses to the health of Appalachian families and the environment, not a single community member affected by mountaintop removal has been invited to speak to this Committee.”

For starters, mountaintop mining poses no threat “to the health of Appalachian families” and essentially zero impact on the “environment.” As I explain in detail here, the EPA’s war on Appalachian coal is predicated on protecting an insect that lives for a day, and which isn’t even an endangered species.

As for the Sierra Club’s nonsense about the Committee not having invited a “single community member affected by mountaintop removal,” there is an extremely likely explanation: No such “community member” exists. In May 2010, I travelled to Charleston, West Virginia, to attend an EPA field hearing on its Appalachian coal crackdown. It took place in the Charleston Civic Center, and there were probably 2,000 people in the room, of which I’d guestimate that 1,980 were against the EPA. Of those that supported the EPA’s assault on Appalachian coal production, 10 worked for the EPA, and the rest were from environmentalist organizations. There were no “community members affected by mountaintop removal.” The upshot is that the only people in this affair who are “affected” are the coal industry and support industry workers who are at risk of losing their jobs.

Sierra Club: “Mountaintop removal is not the economic cure-all that many in Congress claim it to be.”

Wrong again! Mountaintop mining might be anathema to radical environmentalists at the Sierra Club, but it’s absolutely essential for the Appalachian coal industry’s competitiveness vis a vis coal production west of the Mississippi.

Sierra Club: “In reality, it costs miners their jobs through mechanization, jeopardizes their health and puts state budgets even deeper into debt.”

Regarding the first clause: If mountaintop mining “costs miners their jobs,” then why do miners support it? As for the second clause, it is an unequivocal fact that local and state governments in Appalachian States rely on the coal industry for a significant part of their tax revenues. For example, at the May EPA field hearing, Logan County (West Virginia) School Superintendent Wilma Zigmond said that, “coal keeps the lights on and our schools running,” after noting that property taxes from coal mines contribute more than $17 million annually.

Sierra Club: “There is a better way.”

Really! That’s great. Please, tell me this better way! (I sure hope it’s not windmills and solar panels)

Sierra Club: “Clean, safe and affordable alternatives exist to power our nation—without the high economic and health costs or destruction that come with mountaintop removal coal mining.”

D’oh! She was talking about wind mills and solar panels. The fact is, you can’t replace reliable, affordable energy (like coal power) with unreliable, expensive energy (like wind mills and solar panels). It just doesn’t work. I’ll also reiterate that the “high economic and health costs or destruction that come with mountaintop removal mining” is limited to an insect that lives for a day, and which isn’t even an endangered species.

Sierra Club: “In this time of economic uncertainty, it is more important than ever for Americans to seek out safe, cost-effective solutions to our energy crisis.”

This is ridiculous. “In this time of economic uncertainty,” it is important for people to have jobs, WHICH IS EXACTLY WHAT THE SIERRA CLUB OPPOSES. Moreover, the most “cost-effective” solution to our “energy crisis (?)” is coal. I’ll grant that coal mining is more dangerous to Americans than the manufacture of wind turbines and solar panels in China. [To be sure, as a free marketer, I'm a proponent of China's right to sell America wind turbines and solar panels without restrictions, in order to cheapest meet the foolish green energy production quotas that our politicians subject us to.]

Sierra Club: “Mountaintop removal coal mining simply doesn’t fit this bill.”

Perhaps in bizzarro world, but not here on planet earth.

Coal

Clean Water Act: The EPA has invented a “pollutant”— salinity—in order to stop surface coal mining in Appalachia.  It claims that this “pollutant” harms an order of short-lived insect, the Mayfly, which has not been proposed for listing as an endangered species.  The EPA has set a numeric water quality standard for salinity which effectively bars new surface coal mining permits.

Surface Mining Control and Reclamation Act: Despite the fact that the 1977 SMCRA explicitly authorizes “valley fills” (a necessary byproduct of surface coal mining in the steep terrain of Appalachia), the Department of the Interior is working on a re-interpretation of the so-called “100 feet buffer rule,” a regulation derivative of SMCRA, which would effectively outlaw valley fills, and, as a result, Appalachian surface coal mining.

Oil and gas

Red Tape: The de jure moratorium on deepwater drilling permits in the Western Gulf ended on 22 October 2011, but the de facto moratorium remains.  Two weeks ago, a federal judge in eastern Louisiana (the same one who overturned the first moratorium, and who then found the Department of the Interior in contempt for issuing an identical, second moratorium), ordered the Interior Department to act on 5 pending permits within 30 days.  Interior is also slow-walking shallow water permits.

Breaking the 2008 deal: President Obama has reneged on the deal made with the American people in 2008 when gas prices reached $4 a gallon.  He has re-instituted the moratorium on offshore oil and gas exploration in the eastern Gulf, the Atlantic, the Pacific, and most of the Alaska coast.  The Department of the Interior has cancelled or delayed exploration leases on federal land in the West.   And he is adamantly opposed to opening ANWR.

Wild Lands policy: It is as yet unclear what will be the effect of Interior Secretary Ken Salazar’s recent directive to take an inventory of BLM lands to discern which ones are “wild lands” unsuitable for oil and gas development.

Natural Gas

Safe Drinking Water Act: The 2005 Energy Policy Act exempted hydraulic fracturing (the drilling technological revolution that has vastly expanded North American recoverable gas reserves in the last decade), but environmentalists allege, without any evidence, that the practice harms water aquifers.  The EPA is conducting an investigation into the impact of “fracking” on drinking water.  It is due to be published sometime in 2012.

Clean Water Act: Although the EPA is trying to limit the application of its pending numeric water quality standard for salinity to the Appalachian coal industry, there is no legal basis for such a limitation, and environmentalists already are trying to expand the scope of the new standard to natural gas operations in the Marcellus Shale formations in the Northeast.