In Cool Hand Luke, Paul Newman is sentenced to two years on a chain gang for cutting the heads off of municipal parking meters. The Mingo Logan Coal Company wants to cut the top off of 3.5 square miles of West Virginia mountaintop. This week, EPA gave the company’s Spruce No. 1 Mine
proposal the death penalty, using its authority under § 404(c) of the Clean Water Act to veto a permit issued by the Army Corps of Engineers in 2007. As EPA noted in its press release, this is only the 13th time in 38 years that EPA has utilized § 404(c) to veto a permit.
EPA’s decision resulted in howls of protest, not just from the mine’s owner, but also from the two Senators from West Virginia. Joe Manchin, who famously campaigned with an advertisement in which he shot a purported copy of cap-and-trade legislation, described EPA’s decision as a “shocking display of overreach.”
EPA’s characterization was slightly different. The agency summarized the mine’s impacts as follows:
Burying more than 35,000 feet (more than 6 miles) of high-quality streams under mining waste, which will eliminate all fish, invertebrates, salamanders, and other wildlife that live in them;
Polluting downstream waters as a result of burying these streams, which will lead to unhealthy levels of salinity and toxic levels of selenium;
Causing downstream watershed degradation that will kill aquatic wildlife, impact birdlife, reduce habitat value, and increase susceptibility to toxic algal blooms;
Inadequately mitigating for the mine’s environmental impacts to high-quality streams , by using mining ditches, for example, to offset the functions provided by these natural streams; and
Failure to consider cumulative watershed degradation resulting from past, present, and future mining in the area.
While I’m sure that the owner will dispute some of EPA’s characterization, my money’s on EPA, overreach or not. The impacts of mountaintop mining are substantial and I don’t see a court rejecting EPA’s conclusion that they are, in this case, “unacceptable.”
To bring the situation back to Cool Hand Luke, what EPA and the mining companies have here is a failure to communicate, and EPA is the one in the Strother Martin role, wielding a very painful veto hammer.