Senator Mitch McConnell Wants to Fast Track Mountaintop Removal Permitting With the Coal Jobs Protection Act

Not to be outdone by Joe Manchin, his Democratic colleague from neighboring West Virginia, Kentucky Senator Mitch McConnell announced plans to introduce a bill similar to Manchin's EPA Fair Play Act that would restrict the ability of the EPA to protect our land and water. In his press release, McConnell was joined by West Virginia GOP Representative Shelly Capito, who is introducing similarly worded legislation to the House of Representatives.

            McConnell’s “Coal Jobs Protection Act” would place time limits on the EPA’s approval process. Under the bill, the EPA would have 270 days, or slightly less than nine months, to grant Clean Water Act 402 water pollution permits. The agency would have a year’s time to conduct environmental assessments on proposed valley fills under the Clean Water Act’s 404 permitting process, something that the EPA estimates to take, on average, about three years. The proposed legislation goes on to say that, “Failure to act within that time frame for approval of a 404 permit would mean the application is approved, the permit is issued, and the permit can never be subject to judicial review.” In other words, McConnell wants hastily approved permits for mountaintop mines or they will automatically be approved by default. And after that, they cannot be questioned.

            The bill would also disable the EPA from regulating carbon emissions from coal-fired power plants.

            Unmentioned in the press release is the recent court victory that allowed the EPA to revoke the permit for the Spruce Mine No. 1 in West Virginia, but it does include figures on declining coal production in Kentucky, stating that in 2012 the state’s total coal production fell by over 16 percent and direct employment from coal mining fell by over 22 percent, with 4000 miners in eastern Kentucky loosing their jobs. Of course by including these figures in the press release McConnell implies that the EPA is somehow responsible for this lowered productivity and job loss, when it is in actuality the extremely low prices for natural gas that have industry abandoning coal.

Senator Joe Manchin Wants to Tie the Hands of the EPA by Reintroducing the EPA Fair Play Act

Earlier this week the U.S. District Court of Appeals handed West Virginia and the environment a victory when they ruled that the EPA could withdraw a previously approved Clean Water Act permit for the Spruce Mine No. 1, a permit for the largest such mine operation to be performed in West Virginia.

            In an unsurprising political move, West Virginia’s Democratic Senator Joe Manchin reintroduced the EPA Fair Play Act, Senate Bill 272. The summary of the bill reads thus:

EPA Fair Play Act - Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to remove the authority of the Administrator of the Environmental Protection Agency (EPA) to prohibit the specification of any defined area as a disposal site for discharges of materials into waters of the United States, or to restrict the use of any defined area for specification as a disposal site, once the Secretary of the Army has issued a permit for dredged or fill material.

To understand what is going on here, a little background on mountaintop removal is needed. Under the Clean Water Act, the Army Corps of Engineers is granted the authority to issue permits allowing for the discharge of pollutants or the placement of dredge and fill material into our nation’s waterways. Permits under section 404 of the Clean Water Act—intended to be used to allow the use of fill or dredge for the construction of levees, bridges, or other structures in or around water—are generally easier to get than 402 permits, which control the discharge of pollutants into lakes and streams. A court ruling that goes back over a decade established that the Corps can allow mountaintop removal operations to fill in valleys and streams with their waste material under 404 permits, as though these valleys and streams were somehow construction sites instead of dumping grounds.

            The ruling this week stated that the Administrator of the EPA has the authority “to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site “whenever he determines” the discharge will have an “unacceptable adverse effect” on identified environmental resources.” That is, the EPA, even though the Army Corps of Engineers has granted a 404 permit, can still determine that a valley fill would pollute or otherwise harm the environment and revoke the permit.

            So the EPA Fair Play Act would tie the hands of the EPA. No matter how bad a valley fill or other disposal of overburden might be, once the Corps issued a 404 permit, the EPA could do nothing to protect our rivers and streams.

            It is unsurprising that Joe Manchin, a strong supporter of the mining industry, would reintroduce this measure. West Virginia’s other Senator, Jay Rockefeller, supports the bill. He has at times stood his ground against King Coal, but in more recent years has grown friendlier to the industry. I imagine that this bill could get a lot of support in Congress, passing the Senate and House. We can hope that it receives a veto from president Obama.