D.C. District Court Overrules EPA’s Spruce Mine No. 1 Permit Veto

By Brian Sewell

On March 23, a District of Columbia District Court ruled in favor of Arch Coal and overturned a 2011 veto by the U.S. Environmental Protection Agency, restoring the permit of the Logan County, W.Va., Spruce No. 1 mountaintop removal mine. U.S. District Judge Amy Berman Jackson ruled that the EPA had overstepped its authority by revoking a permit already granted by the U.S. Army Corps of Engineers.
The ruling that the original Corps of Engineers permit is valid makes Arch’s Spruce Mine, which would span 2,278 acres, the largest permitted mountaintop removal mine in West Virginia history.

The EPA first vetoed the Spruce Mine permit in January 2011 largely because the permit allowed coal operators to bury seven miles of streams. At the time, the agency said the mine would “jeopardize the health of Appalachian communities and clean water on which they depend … We have responsibility under the law to protect water quality and safeguard the people who rely on clean water.”

The ruling sets a precedent restricting the authority of the EPA under Section 404 of the Clean Water Act, and represents a victory for the coal industry and politicians who have accused the current administration of waging a war on coal by delaying or denying mountaintop removal permits. Environmental groups are urging the EPA to appeal the decision in hopes that the permit will again be revoked, and are concerned about the ruling’s possible significance for future mountaintop removal mines.

The ruling came a month after the U.S. Army Corps of Engineers lifted a suspension on a streamlined permitting process for surface mines known as Nationwide Permit 21. Under Section 404 of the Clean Water Act, the revised NWP 21 places restrictions on valley fills associated with mountaintop removal to half an acre and 300 linear feet.

EPA Issues Long-awaited Rules on Greenhouse Gas Emissions

By Brian Sewell

After several years of planning and public comment, the U.S. Environmental Protection Agency released the first-ever proposed rules regulating carbon pollution from power plants on March 27. The rule is the result of a 2007 U.S. Supreme Court ruling that gave the EPA authority to regulate greenhouse gases under the Clean Air Act.

The proposal will require new power plants to limit their carbon dioxide emissions to 1,000 pounds per megawatt-hour of electricity generated; some plants operating today produce as much as 1,800 pounds per megawatt-hour. To be in compliance, any new coal-fired plants would be required to use carbon capture and storage technology. Natural gas plants would not need any additional pollution controls to meet the requirement.

The rule will apply only to coal-fired power plants that will not begin construction in the next 12 months. Power plants that have been permitted or are currently under construction will be exempt from the rule. However, if utilities build new plants once the rule goes into effect, it will cost significantly more and possibly require carbon capture and sequestration technology. Anticipating this shift, the U.S. Energy Information Administration forecasts that no new conventional coal plants will come online after 2012.

While the rule will not affect permitted plants, it could derail some projects that have not been approved. In Surry County, Va., Old Dominion Electric Cooperative had originally received zoning permission from the Dendron town council and planned to break ground on a 1,500-megawatt coal-fired plant this year. But aggressive community organizing that disputed the zoning succeeded in delaying the permitting process, pushing the proposed plant into qualifying for the EPA’s new regulations and creating an economic liability for ODEC that makes construction unlikely.

Although there are currently no laws limiting the amount of carbon pollution power plants can emit, the agency has determined that emissions threaten human health and contribute to global climate change. The new requirements are likely to become law before the end of the year. The EPA is expected to announce a separate rule after the presidential election that will apply to existing coal plants, which are responsible for nearly 40 percent of the country’s carbon emissions.