Energy and Environment Monitorwww.eem.jacksonkelly.com

Upcoming Federal Climate Change Legislation

      A fight within the Democratic Party over control of the House Energy and Commerce Committee could influence the outcome of President-elect Obama's efforts to limit the carbon emissions blamed for global warming. Obama has said he wants to act quickly on climate change. But crucial bipartisan support could be tested if liberal California Rep. Henry Waxman succeeds at unseating Chairman John Dingell of Michigan, the panel's top Democrat for 28 years and a key ally of automakers and electric utilities. The winner will be at the helm of a panel that will spearhead a bill to cap greenhouse gases and establish a multibillion-dollar market in carbon dioxide, with companies buying and selling the right to emit.

     Last month, a draft of proposed climate change legislation was released by Dingell. If he successfully maintains his chairmanship, the climate change legislation for the 111^th Congress should closely resemble this draft. His legislation would establish an economy-wide program to cap and reduce greenhouse gases 80% below 2005 levels by 2050 and is the culmination of nearly two years of intensive work he has undertaken, including holding 27 hearings, issuing four white papers, hosting numerous workshops, and seeking input from various industry, environment, labor, and non-governmental organizations.

     He said the discussion draft would establish an economy wide cap on greenhouse emissions, with the early part of the system marked by caps “set at a level that is realistically achievable to ensure that firms are able to adjust gradually.” The comments were made in a memo received by all energy and commerce committee members. The memo said the proposed system provides training mechanisms that will offer firms “maximum flexibility and establish incentives for the development of new energy and abatement technologies.” Dingell says his draft “addresses a number of key provisions – including carbon capture and storage technologies – that will form the basis for legislation in the new Congress.”

     However, if Waxman prevails in his efforts to become the committee chair, his legislation will likely resemble the stringent climate change legislation he introduced into the House last year. His proposal would be tougher on industry at the beginning and provide less flexibility than Dingell’s proposal. Waxman’s bill amends the Clean Air Act to direct the Environmental Protection Agency EPA to promulgate: (1) targets for a 2% reduction in greenhouse gas emissions each year from 2010-2050; and (2) regulations requiring reductions to meet such targets, including by setting caps on emissions of sources and sectors with the largest emissions or the best opportunities to reduce them, by issuing and authorizing trading of emission allowances, and by imposing penalties for excess emissions.

     It is clear that climate change legislation is on the horizon for the 111^th Congress. The open questions are: Will the legislation resemble Dingell’s proposal, Waxman’s proposal, or will it evolve into some form of a hybrid? Also, will whatever form the legislation becomes be palatable enough to gain the necessary support for passage by both chambers of Congress and ultimately President-elect Obama’s signature.

     This article was authored by Donnie L. Adkins, Jackson Kelly PLLC. For more information on the author see here.

Anti-Mining Groups Hope to Reverse Bush Administration Rules on Surface Coal Mining

            Recent news articles have reported that anti-mining groups, energized by the election of Obama, are setting their sites on two rules that the Bush administration either has issued or proposes to change.  These rules—the so-called “buffer zone rule” and the “fill material rule”—were at the heart of the first two mountaintop mining cases to arise out of West Virginia. See Bragg v. West VirginiaCoal Ass’n, 248 F. 3d 275 (4th Cir. 2001) and Kentuckians for the Commonwealth v. Rivenburgh, 317 F. 3d 425 (4th Cir. 2003).  These anti-mining groups have long realized that the key to attacking surface mining is to outlaw excess spoil valley fills.  When rock is broken up to access coal seams in the surface mining process, it “swells” to occupy 25-40 percent more volume than it did prior to mining.  Although surface mines must generally be reclaimed to their “approximate original contour,” the natural slopes in central Appalachia are too steep to accept the increased volume of material without that material simply sloughing down the hillsides.  Accordingly, the Federal Surface Mining Control and Reclamation Act (SMCRA) contemplated that the excess “spoil” would be placed in the head of valleys in “excess spoil valley fills,” where the material can be stabilized.  Because these valleys were created by erosive forces of water, they naturally contain the ephemeral and intermittent channels of small streams. The placement of valley fills in these channels has proven to be the root of virtually all of the challenges advanced by anti-mining extremists in West Virginia and Kentucky over the past decade.

            The “buffer zone” rule is a surface mining rule issued by OSM under SMCRA (and adopted by states with primacy over the mining programs within their borders) that prohibits mining within 100 feet of intermittent and perennial streams absent certain findings. Those findings include determinations that the disturbance will not violate water quality standards and will not adversely affect the water quantity and quality or other environmental resources of the stream.  It was derived from the Department of Highways standard for creating a “filter strip” of vegetated area between streams and mining, but was never intended to prevent the construction of excess spoil valley fills needed by the mining industry.  Likewise, SMCRA expressly prohibits a construction of that statute or rules thereunder that interfere with provisions of the CWA, including those provisions that allow the Corps of Engineers to issue permits for “fills.”   

In 1999, a federal district judge in West Virginia, though, ruled that the buffer zone rule did apply to valley fills and that state mining officials could not make the findings needed to avoid a prohibition on fill construction.  Prior to that ruling, the Clinton administration also argued that the rule did not prohibit fills.  On the eve of an appeal to the Fourth Circuit, though, Justice Department officials in the Clinton administration made an abrupt about-face and filed a brief arguing that the buffer zone rule did prohibit most fills.  The Fourth Circuit reversed on jurisdictional grounds after the 2000 election, but never ruled on whether the buffer zone rule applies to valley fills.  Later, the new Bush administration issued policy documents that allowed valley fills under the rule and a state administrative appeals court in West Virginia rejected claims that the rule prohibited valley fills.  Nonetheless, state mining officials were still subject to a change in interpretation by OSM and DOJ in later administrations.  Accordingly, the Bush administration started work on a change in the rule several years ago.  It is just now completing that work because it had to conduct an Environmental Impact Statement, but opponents of the rule are characterizing it as a last minute “give away” by the Bush administration.  We hope that the new rule will be finalized before the end of the year, but anticipate that it will be attacked in the D.C. District Court and will be the subject of intense lobbying by anti-mining groups.

The “fill material” rule was adopted by the Corps of Engineers and USEPA to remedy a long-festering inconsistency in their two programs.  Under the CWA, USEPA (and states with USEPA approval) oversees the NPDES program for discharges of non-fill pollutants to waters of the US.  The Corps has authority over discharges of “fill” material. The CWA does not define the term “fill material,” and for many years the two agencies maintained inconsistent definitions—primarily for the purpose of foisting off to each other primary responsibility for permitting politically unpopular solid waste landfills. Thus, the USEPA, defining the “fill material” that did NOT fit within its NPDES program, adopted an “effects” test: if material had the effect of filling or raising the bed of a waterbody, then it was “fill” regardless of the discharger’s purpose.  The Corps, anxious to give primary authority over “waste” fills back to USEPA, limited the scope of the “fill material” that it would permit to material discharged for the “primary purpose” of creating dry land, and expressly excluded those materials discharged for the primary purpose of waste disposal.  Because excess spoil valley fills were generally regarded as waste, there was an argument that neither agency could permit them under the CWA. That argument was adopted in another ruling by the same federal district judge who ruled that the buffer zone rule prohibited fills.  The 4th Circuit reversed that ruling as well, soon after the Corps and USEPA issued a joint definition of “fill material” that adopted the “effects” test previously used by USEPA.  The effect of the rule was to make clear that valley fills are “fill” material subject to the Corps’ authority under the CWA. 

Anti-mining groups have long opposed this rule as well, and have supported several Congressional bills that would effectively undermine the joint rule. 

If you have any questions, feel free to call Bob McLusky (for more information on the Bob see here) (304 340-1381), Jim Snyder (for more information on Jim see here) (340-1290) or Blair Gardner (for more information on Blair see here) (340-1146).  Between them, they have handled all of the mountaintop mining cases in West Virginia and Kentucky.