In this era of hyper-partisanship, the mainstream media thinks that bi-partisanship is beautiful…unless both parties agree on an environmental policy, in which case the media invariably recasts the story such that it’s the Green Democrats versus the Dirty Republicans.

On cap-and-trade policy, I’ve noted in a previous post how the media willfully ignores that both parties oppose energy rationing. Instead, you’ll read or hear about the “Republican War on Science,” whenever Congressional climate policy gets rejected by a bipartisan, bicameral vote.

There was another example of this phenomenon last Wednesday. The Energy and Water Subcommittee of the Transportation and Infrastructure Committee held a hearing during which there was unanimous bipartisan agreement that the Environmental Protection Agency had overstepped its bounds on a controversial policy regarding  mountaintop removal coal mining in Appalachia.

To me, at least, unanimously bipartisan opposition to a major Presidential policy on an ultra-divisive issue is newsworthy. But there was no mention of it in any of the stories on the hearing that I read. Readers of the stories that I read would have thought that the Democrats and Republicans clashed.

The subject of the hearing was the EPA’s issuance of what full Committee Ranking Member Nick Rahall (D-WV) called “do or dare permits,” whereby the EPA threatened to veto surface coal mining permits that failed to meet “non-binding” guidance documents. This is a blatant violation of the federal Administrative Procedure Act. As I explain in detail here, the EPA’s justification for these procedural shenanigans is the protection of an insect that lives for a day, and which isn’t an endangered species.

Subcommittee Ranking Member Timothy Bishop (D-NY) spoke of a “pendulum” between the “non-mutually exclusive” issues of environmental protection and economic activity. He said it had swung too far towards business in the Bush era, and now it appeared to have swung too far in the other direction. Of course, Rahall agreed with the Republicans; he’s from West Virginia, the nation’s second largest coal producing state. Rahall’s constituents suffer most as a result of this Administration’s war on Appalachian coal production. Rep. Jason Altmire (D-PA), offered “our support, as a group…for anything we can do to lessen the burden.” Rep. Laura Richardson (D-CA) chided EPA Acting Assistant Administrator Stoner, saying, ““When an issue raises to the level of the Congress, you know there’s a problem.”

To be sure, Rep. Bishop aggressively defended the EPA from the rhetorical claim, made by one witness, that the Obama Administration was waging a “war on coal” in order to fulfill the President’s promise to “bankrupt coal,” but he also allowed that EPA had gone too far when he made his pendulum analogy. Again, Rep. Rahall’s willingness to check the EPA was never in doubt. Rep. Altmire is from Appalachian PA, where surface coal mining is practiced (although there has been a dramatic conversion from surface to underground mines there over the last decade), but I couldn’t find any evidence of mountaintop removal coal mines in that State. Rep. Richardson’s skepticism of the EPA’s actions was most striking, given that her district is as far from Appalachia as it gets.

Remarkable, right? Perhaps, but it wasn’ newsworthy. In fact, if you didn’t attend the hearing, but you read media accounts of the hearing, your knowledge of what took place would be the opposite of what took place.

In the trade publication I rely on for energy and environment news, the write up of the hearing mentioned that two Democrats defended the EPA from purple rhetoric used by witnesses and Republicans. The story never mentioned that these Democrats ultimately agreed with Republicans on the need to check the EPA. And on the blog that I rely for detailed information about the Appalachian coal industry, a post on the hearing was titled “EPA, Democrats Respond to Coal Attacks.”

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.

New Hampshire

Legislation that would withdraw New Hampshire from a regional energy-rationing scheme gained momentum last week. HB 519, which would pull New Hampshire out of the Regional Greenhouse Gas Initiative, a cap-and-trade for 10 northeastern States, was approved by the House Science Technology and Energy Committee and endorsed by House Speaker William O’Brien. Two weeks ago, Governor John Lynch (D) preemptively threatened to veto the bill, but Republicans have a veto-proof majority in the State Legislature, so if they stick together, they can end this energy tax.

Kentucky

Outrage at the EPA’s campaign against coal is bipartisan in Kentucky. Last month, a top Democratic lawmaker, Jim Gooch, called for “secession” from the green regulatory state. Last week, by an overwhelming bipartisan vote, the State Senate Natural Resources and Energy Committee passed a bill that would make Kentucky a “sanctuary state” out of reach of the EPA’s “overreaching regulatory power.” The symbolic legislation is expected to easily win passage in the full Senate.

Wyoming

Wyoming Governor Matt Mead’s (R) administration two Fridays ago filed three petitions in the Tenth Circuit of the U.S. Court of Appeals challenging rules established by the U.S. Environmental Protection Agency on greenhouse gases. Friday was the deadline to appeal the EPA’s new climate regulations. Wyoming and Texas were the only states to challenge the regulations directly, although Texas, Virginia, and Alabama, with the support of fourteen other states, have a lawsuit pending before the Washington, D.C. Circuit Court that seeks to overturn EPA’s decision to regulate greenhouse gases.

Last week Tim Huber of the Associated Press broke news on yet another front being opened in Obama’s war on Appalachian surface coal mining (I blogged about the other front yesterday).

The AP story pertained to a controversial rule derivative of the 1977 Surface Mining Control and Reclamation Act (SMCRA), known as the “100 feet buffer rule. As its name would suggest, it basically prohibits mining waste from being deposited within 100 feet of intermittent or perennial streams. According to the AP article, the Obama Administration’s preferred interpretation of this rule would cost 7,000 mining jobs, almost exclusively in Appalachia. And that’s the Department of the Interior’s own estimate, which is likely a lowball.

Background: The 100 feet buffer rule was largely ignored until the 1990s, when environmentalists initiated lawsuits alleging that valley fills constitute mine waste, and are therefore in violation of the buffer rule.

[Valley fills are a necessary byproduct of surface mining in the steep terrain of Appalachia. When you dig up coal, the loosened dirt and rock, known as overburden, have more volume than when they were compacted. Much of this overburden is used to reconstruct the approximate original contour of the mined terrain. However, there is almost always "extra" overburden, and this excess dirt and rock is placed in the valley at the base of the mine. This is known as a valley fill]

The problem with the environmentalists’ reasoning is that SMCRA clearly “contemplates that valley fills will be used in the disposal process,” to quote the Fourth Circuit Court of Appeals. So it doesn’t make sense that the law would both authorize and prohibit the same practice. President George W. Bush put the issue to rest in his second term. His Department of the Interior undertook a formal rule-making to exclude valley fills from the 100 feet buffer rule.

President Barack Obama, however, had campaigned on a promise to “bankrupt” the coal industry, and shortly after assuming office, he had the Department of the Interior try to reverse the Bush rule change, and thereby subject the Appalachian coal industry to an army of environmental lawyers. But a federal court slapped down this effort, because the Interior Department had tried to impose the rule change without a formal rulemaking. Thus rebuffed, the administration promised to revisit the issue within two years, and instead used a different tack to inhibit Appalachian coal production.

Which brings us to the AP story. Evidently, the Obama administration has been working on a new version of the 100 feet buffer rule, and their preferred choice is a doozy. According to the AP,

The office, a branch of the Interior Department, estimated that the protections would trim coal production to the point that an estimated 7,000 of the nation’s 80,600 coal mining jobs would be lost. Production would decrease or stay flat in 22 states, but climb 15 percent in North Dakota, Wyoming and Montana.

As Appalachia is the only region where valley fills are used frequently in coal mining, it stands to lose the most. Then again, that’s the point. This would be the second major business-crushing regulation tailor made for Appalachian coal country (to learn more about the first, click here and here).