Bush EPA Guts Stream Buffer-Zone Rule
December 3rd, 2008More Water Pollution for Corporate Profit Dead Ahead
The Bush administration signed off on a controversial 11th hour repeal of the stream buffer-zone rule this week, an environmental law which since 1983 has prohibited surface coal-mining activities within 100 feet of flowing streams.
The repeal of this important protection clears the way for an even greater expansion of mountaintop-removal mining as well as pollution of streams in valleys near mining operations, critics say, and should be considered an unconstitutional violation of the Clean Water Act.
“The EPA’s decision is a slap in the face of Appalachian communities, which have already endured enough injustice from mountaintop removal,” said Vernon Haltom, co-director of the West Virginia-based Coal River Mountain Watch. “My home and thousands of others are now in greater jeopardy.”
EPA’s approval comes in spite of a recent wave of criticism directed generally at the outgoing administration’s ‘midnight regulations’ and specifically at the repeal of the stream buffer-zone rule.
“Once again, the Environmental Protection Agency has failed to live up to its name. With less than two months left in power, the Bush administration is determined to cement its legacy as having the worst environmental record in history,” said Joan Mulhern, senior legislative counsel at Earthjustice. “This is a sad day for all people who are thankful for the clear mountain streams and stately summits of the Appalachians.”
The change, which is being proposed by Department of the Interior’s Office of Surface Mining, had to receive written approval from EPA before it could be finalized. That last hurdle was cleared Tuesday.
Opponents of the repeal of the stream buffer-zone rule argued that EPA could not legally approve the rule change because doing so conflicts with EPA’s duties under the Clean Water Act.
“The EPA’s own scientists have concluded that dumping mining waste into streams devastates downstream water quality,” said Ed Hopkins, director of Sierra Club’s Environmental Quality Program. “By signing off on a rule to eliminate a critical safeguard for streams, the EPA has abdicated its responsibility and left the local communities that depend on these waters at risk.”
Last month, top decision makers in the coal-mining states of Kentucky and Tennessee urged EPA to block the rule change. Kentucky Gov. Steven Beshear, Attorney General Jack Conway, and Reps. Ben Chandler and John Yarmuth each wrote letters to EPA head Stephen Johnson asking him not to sign off on the repeal of the stream buffer-zone rule. And Tennessee Governor Phil Bredesen also weighed in with EPA, voicing concerns on behalf of his state.
“The regions most affected by this rule, in the Appalachian Coal Belt, are some of the poorest in the nation,” said Lane Boldman with the Sierra Club Cumberland (Kentucky) Chapter. “And all they are asking for is some fundamental protection of their waterways so that they can continue to fish and swim downstream.”
In October, a landmark nationwide poll on mountaintop-removal mining found that two out of three voters opposed the rule change. Upon hearing that “more than 1,200 miles of streams in Appalachia already have been buried or destroyed by mountaintop-removal coal mining,” fully 85 percent of voters said they were concerned about the effects of this mining practice.
Mountaintop-removal mining has long been opposed by many residents of Appalachia. The poll, the first to test voters’ views of this practice nationwide, showed that voters in every region of the country are similarly against mountaintop-removal mining.
“We are surely thankful the Bush administration will soon be gone. We are hopeful that once Obama is president, he will ban mountaintop-removal mining entirely, and Bush’s last-minute sneaky moves won’t end up destroying even more of our streams, and by extension, our mountains, our communities, and our culture,” said Vivian Stockman project coordinator for the Huntington, W.Va.-based Ohio Valley Environmental Coalition.
Since coal companies began the practice of mountaintop-removal mining in earnest, the topography of Appalachia has been forever altered: More than 400 mountaintops have been stripped of trees and flattened, 1,200 miles of mountain streams buried under rubble. Already the lush forests which once cloaked 387,000 acres of the world’s most ancient mountain range have been replaced by apocalyptic lunar landscapes. If industry is allowed to proceed at the current rate, an area the size of Delaware will have been lost.
“With this rule change, the outgoing Bush is poised to eliminate forever more of our headwater streams — the very lifeblood of our mountains and the source of healthy water resources that future generations will depend upon,” said Cindy Rank, West Virginia Highlands Conservancy’s mining chair.
According to the Blackwarrior Riverkeeper, a non-profit watchdog group in Birmingham, the EPA apparently did not heed over 40,000 objections from throughout the country, because of overwhelming politicization of process in Washington, D.C.
“Unfortunately this administration has chosen to upend as many of our important environmental laws as possible while in power,” Riverkeeper Nelson Brooke said in a press release. “This is not only a loss for regions where mountaintop-removal coal mining is prevalent, but also it is detrimental to any community with coal mines.”
With nearly 100 active coal mines in the Black Warrior River watershed, the majority of which are strip mines that are allowed to come within 100 feet of the river and its tributaries, “this rule change could have devastating consequences,” he said.
“While our southern Appalachian coal mines are called strip mines, they are really mountaintop removal to a lesser extent (only because our mountains here are much smaller). Lack of proper enforcement of existing environmental regulations on coal mining is already taking its toll on the river. This is a step in the wrong direction.”
The group is urging interested members of the public to join them in rebuking the EPA’s decision under the Bush Administration by contacting the EPA, members of Congress, and writing letters to the editors of local newspapers and commenting on blogs.
You can bombard EPA administrator Stephen L. Johnson with e-mail as well at johnson.stephen@epa.gov
Write letters to the D.C. office at:
US Environmental Protection Agency
Ariel Rios Building, 1101A
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
(202) 564-4700
For a memo detailing the survey findings, check out this PDF file from the Earth Justice site.
December 4th, 2008 at 12:29 pm
Regulation is a two-sided sword, as environmentalists have reluctantly discovered over the years. With the enactment of “administrative laws” which give federal and state agencies the power to “license” certain amounts of pollution, downstream property rights are effectively eviscerated.
What this means is that, if common law developed over centuries of practice were still in effect, a farmer or other property owner downstream from a strip mine or any other operation dumping pollution into the stream could sue in court to recover all damages and get a permanent injunction against the offenders. Several downstream property owners could band together in a class action suit and effectively end the pollution, permanently.
However, “administrative law” trumps older common law, the courts have ruled in most cases, so if the EPA or another government agency licenses you to pollute, you’re protected as long as you stay within regulations. EPA style regulation was sold to the public as a way to protect us from health hazards posed to everyone by indiscriminate dumping of pollutants into air and water.
The reality is administrative laws and the regulations based on them are convoluted and this is where legions of lawyers and lobbyists, hired by offending companies, come into the picture, along with, of course, the ideological predisposition of a given administration. Bottom line is that there is no effective protection against pollution, strip mining or other degradation of the environment except political ones, which, as we have seen for several decades, can change with the seasons.
A more effective way to stop this kind of environmental degradation would be to bring back at least some of the old common law property rights so that directly affected parties could bring class action suits and courts could issue rulings that have real penalties and real teeth.
Meantime, the environment will be at the mercy of politicians and bureaucrats none of whom, last time I checked, have been nominated for sainthood.