MAC: Mines and Communities

US Update

Published by MAC on 2007-04-07

US update

7th April 2007

Is the tide finally turning against the Bush regime and its apparently implacable war on "environmentalism" in favour of extractive industries and those who burn their fuels?

In a decision on April 2nd, the Supreme Court opened the way to the Environmental Protection Authority being compelled to regulate greenhouse gas emissions.

And, in another precedent-setting ruling, the Court told Duke Energy that it cannot modernise its power plants without also reducing air pollution.

Unfortunately, another utility has been permitted by Virginia state regulators to pump chloride-contaminated mine waters into a river running with endangered species of fish. So far there doesn't appear to be a court challenge to this proposal, although it has been roundly condemmed by a scientific researcher.

Supreme Court Rules EPA Can Regulate Greenhouse Gases

By J.R. Pegg (ENS)


2nd April 2007

The Bush administration failed to follow the requirements of the Clean Air Act when it refused to regulate greenhouse gas emissions from motor vehicles, the U.S. Supreme Court ruled today. The 5-4 decision in Massachusetts v EPA orders the administration to reconsider its decision, a move that could result in the first nationwide regulations aimed at tackling emissions linked to global warming.

"EPA can no longer hide behind the fiction that it lacks any regulatory authority to address the problem of global warming," said Massachusetts Attorney General Martha Coakley.

"The agency cannot refuse to use its existing authority to regulate dangerous substances simply because it disagrees that such regulation would be a good idea."

Although the ruling only forces EPA to reconsider whether it should set greenhouse gas emission standards for new cars and trucks, Coakley said, it would be difficult for the agency "to refuse such regulation once it applies legally permissible factors."

Justice John Paul Stevens, appointed to the bench by President Gerald Ford in 1975, wrote the majority opinion stating that EPA has the authority to regulate greenhouse gas emissions. (Photo courtesy Supreme Court)

White House spokeswoman Dana Perino told reporters the administration was reviewing the decision, which she said was about a legal question, not about policy.

"Now the Supreme Court has settled that matter for us, and we're going to have to take a look and analyze it and see where we go from there," Perino said.

The dispute stretches back to 1999, when environmentalists filed a petition calling on EPA to regulate greenhouse gas emissions from motor vehicles.

The Bush administration denied the petition in 2003, claiming carbon dioxide is not a pollutant under the Clean Air Act and that EPA lacked authority under the statute to impose regulations. In addition, the administration said that even if EPA had such authority, the agency would not set greenhouse gas emission standards for new vehicles because of scientific uncertainty and conflicts with the administration's policy of voluntary programs.

A dozen states and 13 environmental groups filed suit challenging the decision. Ten states and several automobile trade groups sided with EPA in the dispute.

The Supreme Court's review of the case centered on two critical issues - whether the states had standing to pursue the lawsuit and the scope of EPA's authority under the Clean Air Act.

The majority determined that Massachusetts, the lead plaintiff, had standing because sufficient scientific evidence shows the state faces harm from rising sea levels caused by global warming.

"The risk of catastrophic harm, though remote, is nevertheless real," Justice John Paul Stevens wrote for the majority. "That risk would be reduced to some extent if petitioners received the relief they seek."

The administration argued against standing, contending that Massachusetts was unlikely to get relief from rising sea levels if EPA regulated greenhouse gas emissions from U.S. motor vehicles because global warming is the result of emissions from across the world.

"Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum," Stevens wrote. "Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop."

The majority said it had "little trouble" rejecting the administration's argument that the Clean Air Act did not provide EPA the authority to regulate greenhouse gas emissions.

Greenhouse gases are pollutants under the law, Stevens said, and EPA's "alternative basis for its decision - that even if it has statutory authority to regulate greenhouse gases, it would be unwise to do so at this time - rests on reasoning divorced from the statutory text."

The law explicitly states that EPA can avoid regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do, according to the majority.

EPA has done neither, Steven wrote, and instead "has offered a laundry list of reasons not to regulate."

Those reasons, including existence of voluntary programs to address greenhouse gas emissions and foreign policy considerations, have nothing to do with the requirements of the Clean Air Act, the court said.

"EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change," wrote Stevens, who was joined in the majority with Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy and David Souter.

The four conservative members of the court dissented, largely on grounds of whether the states had standing in the case.

"The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land," Chief Justice John Roberts wrote in his dissent.

The goals of the plaintiffs "may be more symbolic than anything else," Roberts wrote. "The constitutional role of the courts, however is to decide concrete cases - not serve as a convenient forum for policy debates."

Justice Antonin Scalia wrote his own dissent, saying the court had "no business substituting is own desired outcome for the reasoned judgment of the responsible agency."

Environmentalists hailed the decision as a turning point for U.S. global warming policy - the case is the first centered on global warming heard by the court.

"The prospect that EPA will act under today's Clean Air Act may light a fire under some industries that have been standing in the way," said David Doniger, NRDC's attorney in the case. "We've now broken a major legal logjam on this issue, and this will be the year that the political logjam is broken, too."

The decision could also have significant implications on other related cases, in particular a lawsuit filed by automakers seeking to block a California law that puts limits on greenhouse gas emissions from cars. The law, currently subject to a temporary injunction, has been adopted by nine other states.

"The Bush administration should immediately give California and other states the green light to put their clean cars programs into effect," said Amy Figdor of the U.S. Public Interest Research Group. "Any delay is completely unjustified given today's ruling."

US Top Court Overturns Duke Clean Air Law Ruling

PlaetArk US

3rd April 2007

WASHINGTON - A unanimous Supreme Court Monday overturned a lower court's ruling that would have allowed utility Duke Energy Corp. to modernize aging coal-fired power plants without reducing air pollutants.

The case had been closely watched by the industry because it could determine whether US electric utilities must spend billions of dollars on emission-reduction equipment and whether similar lawsuits against other US utilities for alleged noncompliance with the Clean Air Act will succeed.

About half of the nation's electricity comes from coal plants, many of which have been operating for decades and need to be overhauled to stay out of mothballs.

The justices set aside a ruling by the Fourth Circuit Court of Appeals that Duke did not need a permit from the US Environmental Protection Agency because hourly emissions from Duke's plants in North and South Carolina would not increase.

Writing the high court's opinion, Justice David Souter said the appeals court's reading of 1980 regulations "was inconsistent with their terms and effectively invalidated them." The case was remanded to the lower court.

Environmental groups had argued that federal law requires utilities to install anti-pollution equipment if they make plant modifications that change their annual - not hourly - emissions of nitrogen oxides, sulfur dioxide, and other pollutants.

Those emissions are linked to heart disease, respiratory ailments and other health problems.

The Natural Resources Defense Council, an environmental group, called the ruling a victory and said it will lead to cleaner air in dozens of US states where coal plants operate -- mostly in the Midwest and Southeast.

Charlotte, North Carolina-based Duke said it was disappointed with the ruling.

"We continue to believe we have solid defenses against the government's claims and will show in the lower courts that our power plant projects were not subject to (federal emissions regulations)," Duke Energy's chief legal officer Marc Manly said in a statement. Between 1988 and 2000, Duke replaced or redesigned tube assemblies at older coal-fired power plants it built prior to 1975 in order to extend their working life.

Those actions spurred a lawsuit from the Clinton administration's Justice Department in 2000, which alleged that Duke violated federal law by failing to get permits.

The Edison Electric Institute, which lobbies for most major utilities, said the ruling leaves intact major regulatory uncertainties which have clouded the industry's path going forward.

However, the court did not rule on a major issue of many federal lawsuits -- whether "routine maintenance" activities at power plants should trigger federal requirements.

"This exclusion was not addressed by the court, and it remains a valid defense for the industry," said Dan Riedinger, a spokesman for the group.

Utility experts say the case does not bode well for the industry's ability to run aging coal-burning plants without retooling them. "Everything is trending against running cheaper power for longer periods of time," said Kevin Book, an analyst with Friedman, Billings, Ramsey and Co. Inc. "As a proxy for other coal related law suits, this doesn't bode well."

(Additional reporting by Jim Vicini in Washington and Lisa Lee in New York)

Story by Chris Baltimore


Firm to pump water from mine into river that's home to rare fish

By Sue Lindsey, Associated Press

7th April 2007

Roanoke, Va. By early next week, equipment will be in place to enable CONSOL Energy to pump water with a high chloride content from an underground mine into a southwest Virginia river that is home to an endangered fish species.

State regulators have signed off on the plan, which the company says is necessary to keep one of the region's largest mines open. But project opponents fear further harm to a river that has just begun to recover from mining's earlier damage.

Buchanan County officials and others are challenging the Department of Mines, Minerals and Energy's decision in court, but there is no order stopping CONSOL from beginning its operation.

CONSOL crews worked in the Levisa River in Grundy this week to install a diffuser, a device that will speed up dispersal of the high-chloride water in the 50-foot-wide stream. CONSOL spokesman Joe Cerenzia said Thursday that the discharge could begin by the end of next week.

"It pretty much releases water through a valve system," he said.

The water released into the Levisa, just downstream from a town redevelopment project, will originate in CONSOL's Buchanan No. 1 mine. The company has been transferring that water into an abandoned mine, and now will pump it from there through a 19-mile pipeline to the Levisa River. The discharge is necessary, the company has said, because it has run out of storage space in abandoned shafts.

The project is a first for Pittsburgh-based CONSOL and for Virginia.

The company and the state will conduct tests on the mine water for various metals, PCBs and even petroleum before the discharge can begin, according to DMME spokesman Mike Abbott. The extensive testing is designed to quell fears of contamination from old equipment in the abandoned mine, and follow-up monitoring is required.

Still, local officials are nervous.

"This is going to have such a major effect on the community down here," said Mickey McGlothlin, county attorney for Buchanan. "We feel the company can afford to treat this water."

Cerenzia said the water will be treated for a high iron content, but not chloride.

"There's not an easy way to remove the chloride," he said.

Instead, the mine water will flow into the river at a rate of 1,000 to 1,500 gallons a minute, Cerenzia said, and be dispersed in the river's 135,000-gallon-a-minute flow over a three-quarter mile "mixing zone."

"A mixing zone is a place where animals will die," said Don Orth, a Virginia Tech professor of fisheries and wildlife science who was asked by county officials to review CONSOL's proposal.

The zone that state officials will allow in the Levisa is 10 times the usual length, he said, adding that such zones are permitted in bodies of water that are already impaired. The Levisa is contaminated with PCBs.

"It's a river that was once a beautiful river teeming with fish that had its fish and wildlife destroyed by mining activity," McGlothlin said last month to the Virginia Marine Resources Commission, which had to approve installation of the diffuser. "But today it's on the rebound."

The Levisa is a popular place for catch-and-release smallmouth bass fishing, according to residents. It also is home to the variegate darter, which is on Virginia's endangered list.

Examinations of the mine water's likely impact have assumed that chloride is the only problem, Orth said. The effect of a mixture of high chloride with metals such as iron haven't been calculated.

The discharged water must meet Environmental Protection Agency drinking water standards.


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