Climate Change is Heating Up in Courts

 

Image Source

By: Peter Rottgers, Senior Staff Member

Climate change is a hot topic that is apparently getting steamier. The big questions posed by the issue of climate change still loom large. What is the cause, what is going to happen, and what should we do? The Environmental Protection Agency (EPA) states that the global temperature increased somewhere between 1.0 and 1.7 degrees Fahrenheit last century.[1] Depending on which reputable scientist you ask, this is either no big deal[2], or a prelude to the worst parts of the Bible.[3]

In addition to the fact that climate change might threaten the welfare of the entire human race, a lot of money is at stake. When a lot of money is at stake, people litigate. While the economic impacts of climate change are broad, two of the parties that seem to be most directly affected are the industries that produce greenhouse gases (GHGs) and climate change scientists. Industries that extract and combust fossil fuels are one of the primary producers of GHGs.[4] Of the GHGs produced by fossil fuel combustion, coal accounts for approximately 25% of all emissions.[5] Because the coal industry will be affected, Kentucky will be too.

The coal industry employs over 17,000 Kentuckians directly, and claims to have created over 53,000 total jobs.[6] The latter number represents about 2.5% of the state’s workforce.[7] Kentucky coal is sold to 30 states and four foreign countries, bringing in billions of dollars and generating millions in tax revenue.[8] If coal remains a viable energy resource, Kentucky will remain a major player in the energy industry because only 17% of the state’s coal supply has been extracted.[9] Coal means a lot to the people of this state.

Climate change might mean as much to the scientists that research it. Government grants awarded to scientists specializing in climate research have risen significantly in recent years.[10] Some scientists saw up to 600% increases in grants received last decade compared to those received in the 1990s.[11] Additionally, some have alleged that the scientific community has behaved in an uncharacteristically uncivil manor in regards to these grants.[12] Accusations of dissenting scientists being blackballed by the scientific community are far from uncommon.[13] Because there is large monetary incentive for scientists and green science supporting organizations to achieve certain results in the field of climate change, some have called the conclusions reached into question.[14] The issue has found its way into courts.

The Supreme Court of Virginia has recently taken such a case.[15] Attorney General Ken Cuccinelli, a climate change skeptic, filed a request under the state’s Fraud Against Tax Payers Act for the research documents of climate scientist Michael Mann, who was employed by the University of Virginia.[16] Similar requests have been made of other climate scientists through the use of the Freedom of Information Act.[17] Cuccinelli suspects that the climate science produced by Mann is baseless, and therefore Mann has defrauded the Commonwealth of Virginia by using public money to produce junk science in an effort to secure grant money .[18] The University of Virginia claims it is immune from such requests because it is an agent of the Commonwealth and not an individual.[19]

Some argue that if Cuccinelli’s request were granted, it would set a precedent that could hinder academic freedom.[20] It could also be a tool for opponents of green science to harass their adversaries.

Litigation can be a powerful weapon, and its use could have significant impact on the climate change debate. The prospect of being dragged into court might deter researchers from generating junk science to get bigger paychecks, but litigation against climate scientists might also be used to bully honest researchers out of doing important work on an issue that affects every living and unborn person. Fortunately, the green community has stepped up to the plate. In an effort to ensure a fair fight, the Climate Science Legal Defense Fund (CSLDF) has recently affiliated with Public Employees for Environmental Responsibility.[21] The CSLDF provides funding for legal representation to climate scientists facing the prospect of litigation.[22]

Hopefully, initiatives like the CSLDF will ensure that questions regarding the validity of climate research are properly answered when they are litigated. The future policies on climate change need to be based on the best information possible because so much is at stake. If good science suggests that further regulation and downsizing of industries like Kentucky coal is necessary for the welfare of the human race, then those actions should be taken, but the people of Kentucky should not have to endure further regulation, or even an eventual moratorium, on their most valuable natural resource based on faulty theories.

Coal’s Negative Impact on Kentuckians Calls for New Energy Solutions

 

Image Source

 

By: Ena Viteskic, Senior Staff Member

According to the Kentucky Environmental Foundation, coal poses severe health risks to Kentuckians. Elizabeth Crowe, Execute Director of an environmental group based in Berea, Kentucky states that “[c]oal as we know it takes a toll on the health of Kentuckians; it’s a fact that many health professionals and researchers know well.”[1] Furthermore, a report by the Kentucky Environmental Foundation titled, “Health Impacts of Coal and Clean Energy Options in Kentucky,” has opined that Kentucky should generate electricity from alternative sources such as solar, wind, and hydroelectric power in order to eliminate the negative health effects of coal.[2] Based on the report, coal extraction at surface and underground mines, washing, transportation, burning, and disposing of coal waste contributes to various health problems.[3] The report also suggest that breathing polluted air and consuming water tainted with mercury and other toxic metals leads to severe respiratory and nervous system complications.[4]

Although coal poses health risk to Kentuckians, it is not easy to find a practical solution to this problem. There has been a nationwide trend to move towards the development and implementation of alternative energy sources; however, the dynamics of Kentucky must be considered before one can conclude that alternatives are appropriate. The Kentucky Coal Association estimates that about “92 percent of Kentucky’s electric power comes from coal-fired power”, and the state prides itself on very low electric rates - probably the lowest in the nation.[5] Some KY legislators are not overly concerned about the negative health impacts of coal. For example, Rep. Keith Hall, a Democrat from Pikeville that owns coal reserves in eastern Kentucky, maintains that coal is burned cleaner now than ever before and that Kentucky’s low electric rates “give it an advantage in attracting new business.”[6]

Because coal brings many benefits to Kentucky, legislators who want to implement measures advocating alternative energy sources face an uphill battle.  Rep. Mary Lou Marzian, a Louisville Democrat, has sponsored House Bill 167, which “would require utilities to generate a portion of their power from renewable sources.”[7] Supporters of HB 167, known as the Clean Energy Opportunity Act, strongly argue that this bill will not only reduce the negative health impact of coal production but will also increase revenue and employment for the state.[8] According to supporters of this new proposal, HB 167 will achieve the following: (1) curb energy costs for families, farms, and businesses; (2) use resources and put people to work to get the economy back on track; and (3) improve the health and well-being of Kentuckians.[9]

Kentucky is definitely the “coal state” of the nation; however, does that mean that new energy ideas should not be implemented? Assessing whether coal production should decrease while the state expands renewable energy sources is a difficult question to answer. Opponents of HB 167 are concerned with the potential decrease in employment if coal production ceases. However, this concern is not that great when the benefits of alternative energy sources are taken into account.  Research shows that “clean energy is one of Kentucky’s fastest growing job markets” with thousands of people being employed across the state.[10] As a result, it seems to me that the Clean Energy Opportunity Act serves the interests of the opponents and supporters of alternate energy solutions.  HB 167 is a plausible solution in order for maximizing employment opportunities while also minimizing adverse health effects in Kentucky.

Kentucky Coal and Governor Beshear file suit

By Bethany Baxter, Staff Member

Under the Clean Water Act (CWA) the EPA has authority to review state issued permits pursuant to §402(d)(2). 33 U.S.C.A. §1342 (d)(2). Kentucky, in assuming responsibility for implementing the CWA, must provide the EPA with notice of permits the state plans to issue, and the EPA may then object to the requirements defined by the state in the permit. Id.

Historically the EPA has been reluctant exercise this authority. However, an EPA report published in April of this year has prompted the Agency to utilize §402 authority in imposing heightened requirements specifically affecting mining permits under the CWA. The EPA released “Detailed Guidance for Appalachian Coal Streams,” in which the EPA links coal mining activity to increases in conductivity levels in waters. 75 Fed. Reg. 18,500 (April 1, 2010). The report sets benchmarks for conductivity levels, based on scientific finding that increased conductivity adversely affects aquatic life in streams. The report explicitly states that the report should be used to “clarify EPA’s expectations,” and states that the EPA expects that Regions 3, 4, and 5 “begin using this interim final guidance immediately in your review of Appalachian surface coal mining activities.” 75 Fed. Reg. 18500 at 1-2.

Kentucky’s narrative water quality standards state, “total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.” 401 KAR 10:031, §4(1)(f). Based on this standard and the newly released report, the EPA rejected several Kentucky permits, finding that the Kentucky Division of Water failed to consider emerging science regarding coal mining affects on water, and failed to incorporate available science concerning conductivity. The Kentucky Coal Association (KCA) filed suit last week against the EPA and Administrator Jackson, claiming that scientific underpinnings of the report are seriously flawed and hence the Agency’s reliance on the report is arbitrary and capricious. See complaint, at 19-20. KCA publically called EPA action an “illegal agenda to end coal mining in Kentucky,” and Governor Beshear, who joined the suit stated, “the arbitrary and unreasonable decisions being made by the EPA threaten to end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.” Dori Hjalmarson, Coal industry, Beshear administration sue EPA over coal mining permits, Oct 19, 2010, Lexington Herald Leader. Both the National Mining Association and the state of West Virginia filed similar suits.

Coal mining is central to the cultural and economic identity of Kentucky. Recently industry practices, particularly mountain top removal, have received much critical attention on the national level. The EPA, in rejecting state permits, is more proactively addressing water quality and pollution associated with coal mining. It is no surprise that the industry and state are resistant. It will be interesting to see how this suit reflects the broader coal debate and tensions between economic growth and environmental protection.

To review the Kentucky Coal Association’s complaint: http://www.kentuckycoal.com/documents/Complaint.pdf

To read the EPA’s “Detailed Guidance for Appalachian Coal Stream:”
http://www.epa.gov/owow/wetlands/guidance/pdf/appalachian_mtntop_mining_detailed.pdf

Is Cap and Trade Really "Dead"?

By: Brandon Wells, Staff Member

Over the past year, a major hot button issue that has enraged and divided those in the coal industry and those working for environmental protection is the cap-and-trade legislation debate. Cap-and-Trade essentially involves setting the limits at which power plants and other polluters can send emissions into the air, and at the same time creating a trading market for those plants to trade emission limits.

Proponents of cap-and-trade see the bill as an economic solution to the issue of greenhouse gas emissions and pollutants, allowing trading to properly reflect demand and to influence participants to lower their greenhouse gas emissions. The bill will also force participants to invest more in pollution control, enabling them to sell unused credits.

The coal industry basically sees the bill as nothing more than another regulation being imposed on an industry that is already prone to an extreme amount of regulation. Cap-and-trade is a threat to the coal industry because it has the possibility to greatly lower the demand for coal, greatly affecting energy prices, especially in places where coal makes energy costs very low. Since plants must lower their pollution, they will be very cautious and may take less coal and take more costly, cleaner forms of energy. They may also invest more heavily in pollution control. Both of these costs will be passed on to the ultimate consumer, raising energy costs for all.

But as of just last month, Senator Lindsey Graham, a leader in getting cap-and-trade legislation passed has declared the bill "dead." Darren Samuelsohn, Graham's Cap-And-Trade Pronouncement Reframes Hill Debate, The New York Times, March 3, 2010 available at http://www.nytimes.com/gwire/2010/03/03/03greenwire-grahams-cap-and-trade-pronouncement-reframes-h-19532.html.

Senator Graham claims himself that his statements were only meant to stir debate, and they certainly have. Some are now worried that the United States is moving in a radical direction when it comes to climate change, and are moving away from the cap and trade legislation. Id. Others are not necessarily convinced that anything has changed and that cap and trade is cap and trade no matter what you call it. Id. It remains to be seen this coming year whether or not cap-and-trade or some other form of climate legislation will make it through Congress. But what do you think? Is Cap-and-trade really "dead?"

Statutory Interpretation and the Chevron Test in Citizens Coal Council v. Norton: A Problem of Administrative Law in the Context of Environmental Policy

Article By: Erin G. McKenzie; JNREL Vol. 18, No. 2

Abstract By: Bryan Henley, Staff Member

Passed in 1977, the Surface Mining Control and Reclamation Act (SMCRA) set forth a new federal regulation system on coal mining. As evidenced by its name, the SMCRA is designed to regulate surface mining, which it does by creating a federal agency, the Office of Surface Mining (OSM). This agency's role is to oversee state regulation of mining by assuring compliance with federal standards. These federal standards, also laid out in the SMCRA, proscribe "surface coal mining operations" in national parks and other similar areas. However, what happens if underground mining affects the surface? Subsistence is a term that describes some of the effects that underground mining can have of the surface land above the mine; but is it regulated by this statute? The answer is not as forthcoming as one might hope.

The SMRCA, through its original text and amendments, was possibly subject to two alternative interpretations. In Citizen's Coal Council v. Norton, the federal courts were forced to confront this conflict and determine if the language of the statute generally prohibited subsistence. Citizen's Coal Council v. Norton, 330 F.3d 478 (D.C. Cir. 2003). The Secretary of the Interior (and National Mining Assoc., an intervening defendant) interpreted the statute to indicate that the subsistence was not within the scope of the SMRCA , and thus underground mining was permissible in the protected areas where surface mining was not. Citizen's Coal Council, argued that this interpretation was arbitrary and capricious, therefore an inappropriate administrative action under the Administrative Procedures Act. Resolution depended upon the court's application of the Chevron test.

The Chevron test provides a framework for a court to analyze an administrative agency's interpretation of a statute. The test first requires the court to analyze if the statute is clear. If the statute is clear, then it is followed. If the statute is not clear, then the agency's interpretation is afforded deference and the court upholds that interpretation as long as it is reasonable. The district court granted summary judgment, finding that the statue was clear and denied underground mining in protected areas. The appellate court reversed, holding that the statute was unclear but that the agency's interpretation was reasonable. What should be a conceptually simple test was applied to directly opposite results by these courts. This highlights the difficultly of applying the Chevron test. In her article, Erin G. McKenzie analyzes the problems in applying this test and its possible effects such an inconsistency may have on the coal industry.

How Effective will the Proposed Plan to Facilitate Domestic Drilling for Offshore Oil Be?

By: Andrew Leung, Staff Member

Disclaimer: The following post reflects the views of the author and not necessarily that of KJEANRL.

Environmental preservationists and proponents of developmental interests have been engaged in an ongoing struggle to influence American policy to facilitate the adoption and spread of their respective agendas. Environmental preservationists often wish to proscribe or severely curtail any human activities with the potential to have a significant adverse impact on the environment. The environmentalist stance necessarily defaults to a position in opposition to intrusive, irreversible changes to our environment, such as the destructive harvesting of natural resources whose reserves take millions of years to regenerate.

Developmentalists, in the form of corporations peddling natural resources, are diametrically opposed to the environmentalists' stance. Their mentality to exploit natural resources as quickly as possible allows company coffers to be filled at the cost of environmental security. Each time a coal mine is opened or an oil well drilled the probability of toxic contamination rises greatly. Oil and coal magnates would argue that they serve an essential function to society, that they mobilize the world populace. While this is indisputably true, it is just another way for such companies to add to the pollution carelessly being released.

A recent plan to permit offshore prospecting and drilling for oil and natural gas announced by President Obama seems in direct contrast with an environmentalist agenda. The plan "would allow drilling along the Atlantic coastline, the eastern Gulf of Mexico and the north coast of Alaska." John M. Broder, Obama Oil Drilling Plan Draws Critics, New York Times, March 31, 2010, available at http://www.nytimes.com/2010/04/01/science/earth/01energy.html?pagewanted=1.

While the President's proposal has enraged environmental interest groups, oil companies are pushing for more concessions. One would think that the 167 million acres of the Atlantic Ocean from which a moratorium on exploration has been lifted should suffice to appease oil companies. However, they push for more pristine environment to taint, specifically drilling rights to the pristine Bristol Bay in Alaska. It seems the oil companies have already decided the fate of the 130 million acres of Alaskan water to be made eligible for exploration and drilling.

One might argue that the entire oil debate is a matter of politics, as many environmentalists seem to be Democrats while Republicans draw support from coal and oil companies. However, this is not the case. In actuality, the dispute over permitting offshore drilling is a matter of numbers. President Obama concedes that Americans use approximately 20% of the world's oil supply while possessing only 2% of the world's reserves within its territorial limits. John M. Broder, Obama Oil Drilling Plan Draws Critics, New York Times, March 31, 2010, available at http://www.nytimes.com/2010/04/01/science/earth/01energy.html?pagewanted=1. Even if the oil companies are permitted to run roughshod over environmental policy and harvest every drop of oil within the United States' jurisdiction – as seems to be their unstated goal – it would not be enough to satiate the American thirst.

Taxing Coal in India to Fund Renewable Energy

By: Matt Cocanougher, Staff Member

When I drive to Kroger for my weekly grocery trip hoping that I remember to get all the necessities, the last thing on my mind is the pollution caused by the exhaust of my car. This is not because I somehow enjoy polluting or harbor resentment toward the natural environment. Instead, it is a negative externality, which is defined as "a consequence or side effect of one's economic activity, causing another to. . . suffer without compensation." Black's Law Dictionary 272 (3rd pocket ed. 2006). The idea is that because I do not have to pay for the pollution I am causing, I will drive to Kroger as many times as is necessary because there are no negative economic consequences for my trip. If the legislature decided that they wanted to make me pay for my pollution, then the solution would be to impose some cost on my Kroger trip, which would force me to decide whether it was worth the cost to make the trip each time I went.

The above rationale used to curb my Kroger trips is being used on a much wider scale in India to encourage renewable energy projects at the cost of the coal industry. India's Finance Minister, Pranab Mukherjee, announced in his annual budget speech to parliament that "[a] clean energy tax of 50 rupees ($1) a metric ton will be imposed on domestic and imported coal," which will be used to start a national fund to support renewable energy projects. Natalie Obiko Pearson and Gaurav Singh, India to Start Clean Energy Fund by Taxing Coal Use, Bloomberg, Feb. 26, 2010, available at http://www.bloomberg.com/apps/news?pid=20601091&sid=awGQrKRFV_PQ. Based on information from Emergent Ventures, a climate change consulting company, this new tax could raise around 25 billion rupees. Id. But this increase in revenue will not come without its costs, and those costs are, in fact, a major reason underlying the new levy. As Ashutosh Pandey, an employee of Emergent Ventures, states, the new tax will "help encourage the development of cleaner energies and impose some kind of cost on users of coal." Id.

This new initiative comes as India, the world's fourth largest polluter, has set a voluntary goal of cutting its carbon intensity "by as much as 25 percent by 2020 from its 2005 levels." Id. Whether this goal can be met by 2020 or not, India is clearly showing that it finds the negatives of carbon emissions from coal use destructive enough to warrant imposing a great deal of new costs on coal companies, which will likely be passed down to the coal company's customers resulting in higher energy bills. It will be interesting to see how India's coal industry will react and whether this decision will be a step forward for alternative energy projects.

The Balancing of Coal and Coalbed Methane Interests Within the Coalbed Methane Statutory Schemes of Virginia, West Virginia, and Kentucky

Article by: Sharon O. Flanery and Leslie R. Miller-Stover; originally appearing in JNREL Vol. 19, No. 2

Abstract by: Kyle Hermanson, Staff Member

Virginia, West Virginia, and Kentucky each have coal seams that lay within the Appalachian Basin and each of the states have adopted statutory schemes designed to maximize the utilization of those natural resources. Their statutes are intended to both ensure the safe production of coalbed methane (CBM) and coal within the same coal seam and balance the rights of the CBM and coal interest holders when they conflict. In 1990, Virginia became the first of the three states to specifically regulate the production of CBM, doing so within its existing scheme of oil and gas regulations. Virginia's statute states that its provisions should be construed to encourage the exploration for and production of the Commonwealth's oil and gas reserves. The statute goes on to provide that the production of coal should be maximized so long as it does not substantially affect the rights of a gas or oil owner. West Virginia and Kentucky's statutes differ in that they emphasize the recovery of coal and that the recovery of CBM should be promoted, provided it does adversely affect the safety or mining of coal seams.

CBM is natural gas that lies trapped in coal seams. CBM is unique in that it is both generated and stored within coalbeds, with the coal acting like a sponge and storing six times the volume of natural gas found in conventional reservoirs. CBM is often produced as a safety measure in advance of underground mining. However, CBM can also be produced for commercial reasons from unmined coalbeds as well as from the fractured rock wastes generated by longwall mining. In order to produce CBM, "stimulation" of the coal seam is usually required. Fluids are injected into the seam at high pressures in order to stimulate the coal and release the gas. There is some concern that this process may affect both the safety and productivity of coal mining.

Despite Virginia's stated emphasis on gas production over coal, the Commonwealth has the toughest standard for the production of CBM, requiring coal owner consent before a permit for stimulation can be granted and providing no venue for appeal should consent not be obtained. West Virginia and Kentucky, like Virginia, also require a permit for stimulation. However, where consent cannot be obtained, both states allow the stimulation applicant to request a hearing before a state agency review board. At the hearing, the applicant must prove that the stimulation will not render the coal seam unmineable or unsafe for mining in order to obtain a permit. In West Virginia, even if a CBM producer obtains a stimulation permit, absent coal owner consent, the producer is subject to tort liability for any damage caused to coal or mining equipment by the stimulation.

In addition to stimulation, the location and spacing of CBM wells provide ample grounds for conflict between CBM producers and coal operators due to potential safety hazards and significantly increased costs to coal operators related to well placement. Through the enactment of statutes, Virginia, West Virginia, and Kentucky have addressed these and several other issues involved in balancing the interests of the producers of two valuable resources, however each state's statutes differ in their specifics and goals.

Obama v. Kentucky Coal

By: Zach Greer, Staff Member

Earlier this month, President Obama and his administration released their proposed fiscal budget for 2011, which will "cut roughly $2.3 billion in coal subsidies over the next decade." Halimah Abdullah, Ky. lawmakers blast federal budget's proposed coal subsidy cuts, Lexington Herald-Leader, Feb. 1, 2010, available at http://bluegrasspolitics
bloginky.com/2010/02/01/ky-lawmakers-blast-federal-budgets-proposed-coal-subsidy-cuts/. These cuts, as well as "the repeal of roughly $36 billion in subsidies to the oil and gas industry," stem from last year's G-20 summit, where the Obama administration agreed to "phase out fossil fuel subsidies to help reduce global greenhouse gas emissions by 10 percent." Id. While environmental groups support the President's budget, claiming that it "'promotes America's energy independence by reducing our reliance on foreign oil, starting the transition away from dirty fossil fuels, and investing in conservation and clean power like wind and solar,'" others worry that removing these subsidies could be detrimental to those Kentucky individuals, families, and counties that depend "on coal for their livelihood." Id.

The Obama Administration's position, evidenced by a White House Office of Management and Budget analysis released earlier this month, is that "coal subsidies are costly to the American taxpayer and do little to incentivize production or reduce energy prices." Id.

However, the Commonwealth of Kentucky "has been one of the top three coal producers in the United States for the last 50 years." In 2006, the Kentucky industry "directly employ[ed] 17,669 persons" and had "average electricity costs [of] 5.43 cents/kilowatt-hour, the 4th lowest in the United States." Kentucky Office of Energy Policy, Expanded Online Kentucky Coal Facts, http://www.coaleducation.org/Ky_Coal_Facts/default.htm (last visited Feb. 20, 2010).

The White House states, "removing these [coal] subsidies would reduce greenhouse gas emissions and generate $2.3 billion of additional revenue over the next 10 years." Abdulla, supra.
But, in December 2009, Kentucky's jobless rate rose to 10.7 percent. Justine Detzel, Kentucky's jobless rate increases to 10.7 percent in December, Workforce Kentucky, Jan. 21, 2010, available at
http://www.workforcekentucky.ky.gov/article.asp?PAGEID=4&SUBID=&articleID=844.

With such a high unemployment rate, are the Obama administration's proposed budget cuts beneficial or detrimental to the Commonwealth of Kentucky? Any thoughts?

Sustainable Development and the Regulation of the Coal Bed Methane Industry in the United States

Article by: Allan Ingelson; Originally published in JNREL Vol. 20, No. 1

Abstract by: Derek Leslie, Staff Member

This article critiques the regulatory regime in place to facilitate Coal Bed Methane (CBM) development and production in the United States. Applying the principles underlying the concept of sustainable development, Professor Ingelson suggests that the regulations affecting CBM development are to a large degree a mixed bag and are far from being considered an example of regulation that would successfully promote sustainable development.

The article begins by considering both the theoretical underpinnings of sustainable development as well as the CBM regulatory process as it exists under the current framework. The President's Council on Sustainable Development (PCSD), established in 1993 by President Clinton, proposed ten draft sustainability goals that incorporated five widely recognized sustainability principles that provide the necessary metric for reviewing the CBM regulatory regime. These five baseline principles suggest that Sustainable Development 1) respects ecological integrity, 2) is based on an efficient use of natural, manufactured, and social capital, 3) promotes equity, 4) relies on participatory approaches, and 5) requires environmental stewardship by all levels of decision-makers.

The CBM regulatory system advances these principles to varying degrees. The system is only partially successful at respecting ecological integrity. Regulation advancing this principle includes the scheme's incorporation of the Endangered Species Act, an ecosystem management planning approach for federal lands, and environmental impact assessments under the National Environmental Protection Act (NEPA). However, due to constitutional constraints, much of the process is truncated with respect to development on private lands, where significant development is likely to occur. The principle of the efficient use of resources reveals a system that is to some points sustainable. However, it does not seem to provide for an efficient use of capital as neither full-cost accounting, a polluter pays principle, nor the precautionary approach have been fully incorporated. As to the promotion of equity, the regulatory scheme also fails. This sustainability principle suggests costs and benefits should be distributed equally among the current and future generations. However, the legal system now in place does not require CBM developers to compensate owners for "reasonable use" damage caused by CBM operations. Landowners may not receive compensation for loss of crops, soil damage, decreased land values, et cetera. Inter-generational equity is also challenged by the current regime, because of the nature of the development and current consumption of CBM, depriving future generations of this finite resource. The fourth sustainability principle of public participation is largely addressed by the framework in place. The environmental impact assessment process, as well as citizen lawsuit provisions, provides stakeholders with a reasonable opportunity to participate in the decision-making process. The fifth principle, stewardship, suggests the government must promote and advocate the idea of sustainability both to the public and industry. While the EPA's attempt to incorporate some sustainability concepts in the CBM regulatory framework represents to some degree this principle, the Bureau of Land Management, as well as the various state agencies, have shown no effort to provide leadership in pursuing sustainable CBM development.

Looking at these concepts in detail, Professor Ingelson concludes that the CBM regulatory system does not effectively promote CBM sustainability. While aspects of the system certainly aim towards the goal of CBM sustainability, other features of the regime clearly prioritize other policy goals such as economic growth and use of CBM as an energy resource.

University of Kentucky researchers explore alternative to filling surface mining sites in Appalachia

By: Donald Smith, Staff Member

There is a new stream at Guy Cove in Kentucky's Robinson Forest, and it could have a significant impact on the future of environmental law with regard to surface-mining. Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www/.
kentucky.com/latest_news/
story/1118658.html#. When coal companies remove rock for surface mining, the "spoil" (extra rock and dirt) that cannot be placed back in the mined area because it swells, is placed into fills in hollows around the site and compacted for stability. Id. This process often results in covering up parts of streams, to the extent that a 2003 federal study found that an estimated 730 miles of streams in Eastern Kentucky were wiped out by surface-mining activities. Id. This is likely an underestimate, as Greg Pond, formerly a biologist with the Kentucky Division of Water who is currently employed at the Environmental Protection Agency ("EPA"), explains in a 2004 research paper that the estimate in the federal study addressed only a particular class of stream, and it is likely that surface-mining has in fact buried hundreds more miles of headwater areas in Kentucky. Gregory Pond, Effects of Surface Mining and Residential Land Use on headwater Stream Biotic Integrity in the Eastern Kentucky Coalfield Region, http://www.water.ky.gov/NR/rdonlyres/ED76CE4E-F46A-4509-8937-1A5DA40F3838/0/coal_mining1.pdf (last visited Feb. 2, 2010). The coal industry has taken a different approach entirely as to what constitutes a stream. As explained in the Lexington Herald-Leader, "[the coal industry says it would be impossible to mine coal without creating fills. To many associated with the industry, the areas high on the side of a hill where water begins to collect are not streams at all, but merely drainage ditches that only flow with water when it rains or when snow melts." Bill Estep, Buried Streams, Ripple of Hope, Lexington Herald-Leader, Jan. 31, 2010, available at http://www.kentucky.com/latest_news/
story/1118658.html#.

University of Kentucky researchers built a new stream atop the fill at Guy Cove, and planted vegetation and trees. Id. The result is a promising alternative to the current method of filling that, while in its early stages, appears, to have provided for high quality water in a stable stream as a method of reclaiming watersheds. Id. The new research development is particularly interesting against the backdrop of the current legal climate with regard to stream reclamation. The EPA has stalled dozens of permit applications in Appalachia, including Eastern Kentucky, for further review, for concerns including restoration of stream functions after mining. Id.

Some Hopeful Signs for Kentucky’s Water

By: Tara Hester, Staff Member

Governor Steve Beshear and his Energy and Environment Cabinet as well as several other groups are working closely with the coal industry to protect Appalachian creeks and streams from the impact of surface mining. Stephanie McSpirit, Some Hopeful Signs for Kentucky's Water, Lexington Herald-Leader, Jan. 25, 2010, available at http://www.Kentucky.com/589/story/1109938.html. The recent reclamation advisory gives clear guidelines so that more excess spoil is retained on the mine site and not bulldozed into valleys and streams. Id. These guidelines are not only good for streams and creeks and the biological communities that they host but are also beneficial to communities downstream from surface mine sites. Id. Stricter guidelines with more attention on protecting stream and creek channels will help reduce the impacts associated with flooding and flash-flooding events. Id. Currently, these guidelines are not mandatory, but only "best practice" guidelines that coal mines are encouraged to follow. There is hope, however, at both the federal and state level that the guidelines will be followed. Id. In Kentucky, stricter federal standards between the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers in granting 404 dredge and fill permits under the Clean Water Act will undoubtedly push more coal companies into adhering to these new reclamation guidelines. Id.

There are several things that can be done to further protect the Appalachian waters. One suggestion is more collaboration and sharing of information and data between the Division of Water and the Department of Natural Resources in evaluating the cumulative impacts of mine activities on waterways. Id. The Department of Natural Resources needs access to the data collected by the Division of Water to better review the impacts of mining activities on surface water. Id. However, it appears efforts to protect Kentucky's waters are moving in the right direction by encouraging discussion among experts and stakeholder groups in developing strategies and recommendations to better protect Kentucky's natural resources and our communities. Id.

Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration

By: Laura L. Mays, Former Staff Member; This Comment was originally published in JNREL Vol. 20 No. 1.

Abstract by: Andrew Leung, Staff Member

In deciding Northern Plains Resource Council v. Fidelity Exploration, 325 F.3d 1155 (9th Cir. 2003), the Ninth Circuit held that naturally occurring groundwater in an unaltered state is a pollutant under the Clean Water Act (CWA) and should be treated accordingly. "Drinkable Water is a Pollutant?: Northern Plains Resource Council v. Fidelity Exploration" examines the court's analysis and explains the probably harmful effects that this holding will have on the coal industry in the Commonwealth of Kentucky and the country at large.

The "pollutant" in question is groundwater removed from natural aquifers through the harvesting of Coal-Bed Methane (CBM). CBM is a naturally occurring deposit of methane that exists in situations where coal is saturated with groundwater, thus trapping methane inside the coal. When CBM deposits are tapped, the miners must also remove the groundwater deposits in order to achieve the ideal pressurization at the mining site.

In Fidelity Exploration, Fidelity Exploration and Development Company extracted CBM from the Powder River Basin in Montana for commercial sale. The groundwater that was brought to the surface was transported to and deposited in the nearby Tongue River. It should be noted that the dissolved solids level in the groundwater was nearly triple that of the river. When this fact was publicized, The Northern Plain Resource Council (NPRC) filed citizen suit in the District Court for the District of Montana. The district court granted summary judgment for Fidelity, but NPRC timely appealed to the Ninth Circuit.

The Clean Water Act proscribes that transport and discharge of a pollutant from a "point source" into "navigable waters" is unlawful. In the case at hand, the "point source" is the underground aquifer from which the CBM was harvested, and the "navigable wate[r]" is the Tongue River. Although defendant Fidelity noted that the water was disposed of in its natural state, the Ninth Circuit found that CBM water was "industrial water" because it was produced as a byproduct of an industrial activity. Ironically, the court conceded that the same water was generally potable, and could be used for agricultural means.

This holding effectively dissuades coal companies from exploiting the CBM deposits that often accompany the coal deposits that they already mine. By imposing this obstacle, coal companies are not likely to change their practice of allowing CBM to escape into the atmosphere, where it contributes to global warming. Fidelity Exploration serves as one of those rare instances where a strict protectionist approach to the environment via literal interpretation of statutes may actually serve to cause greater harm than good.

The Battle Between Coal and Gas Rights Continues: Hazard Coal Corp. v. Kentucky West Virginia Gas Co.

This comment was written by former staff member Elizabeth Clevinger and published in JNREL Vol. 20. No. 1. Staff member Tanner James wrote the following abstract.

Coal and natural gas, despite the ongoing debates about their conservation, are undeniably important to modern society's history and future. Landowners of resource-rich property often grant rights of access to those entities that facilitate the extraction and use of these natural fuels. But, on occasion, conflict arises; and, courts must effectively determine the importance of each resource involved.

In Hazard Coal Corp. v. Kentucky West Virginia Gas Co., 311 F.3d 733 (6th Cir. 2002), a property dispute between a coal company and natural gas company resulted in a victory for natural gas—potentially signifying the end of an era of coal dominance. Hazard Coal Corporation owned the mineral property rights of the tract of land in question. Kentucky West Virginia Gas Company held limited rights to run pipelines through the property that would allow access and transportation of their natural gas. After years of conflict-free operation, the plaintiff sought to extract coal from the property in a location that required the natural gas pipelines to be destroyed or relocated at the expense of Kentucky West. When Kentucky West declined, this case came to trial.

Despite finding that the property agreement was violated by Kentucky West, the Court considered equity and policy, finding for the defendant. The equitable notion of acquiescence (e.g., the plaintiff knew or should have known that the defendant was violating the agreement, yet allowed the violation to continue without complaint) prevented the plaintiff from succeeding on claim of breach. Perhaps more importantly, however, is that the Court considered social policy in determining that Kentucky West should not face liability for decisions made by Hazard Coal.

There once was a time when coal was king, and courts used policy considerations to protect the interests of coal companies. If Hazard Coal Corp. v. Kentucky West Virginia Gas Co. is any indication, the pendulum is now swinging away from coal, in favor of other viable fuel resources.

In a recent decision...

...the United States Supreme Court upheld the authority of the United States Army Corps of Engineers (the Corps) to issue permits for the discharge of slurry, a by-product of the mining technique referred to as “froth flotation.” Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009). Overturning the Court of Appeals for the Ninth Circuit, the Supreme Court determined that slurry is, in fact, “fill material” as defined by the Clean Water Act (the CWA or the Act), and, in accordance with the CWA, the disposal of such material shall be regulated by the Corps without regard to the strict limitations imposed by the Environmental Protection Agency (the EPA) for the disposal of pollutants. Id. at 2463.

The defendant in the case, Coeur Alaska, Inc. (Coeur Alaska), attempted to revitalize an 80-year-old gold mine in Juneau using the “froth flotation” technique whereby the mine’s crushed rock would be mixed with certain chemicals, resulting in the separation of valuable minerals. Id. at 2463-2464. One of the considerations in developing this plan, as is common in most mining operations, was what to do with the mixture of crushed rock and chemicals, referred to as slurry, once the valuable minerals were extracted. Coeur Alaska determined that the most cost-efficient and environmentally-friendly method of disposal would be to deposit the slurry into a nearby lake. Id. Upon approval by the Corps to implement its plan, several environmental activist groups filed suit against Coeur Alaska alleging that the mining company did not comply with the CWA. Id. at 2463.

The Supreme Court’s decision was not a difficult one as the language of the CWA and the regulations that accompany the Act clearly give the Corps the authority to issue permits for the discharge of slurry. However, the Appalachia Restoration Act, which was introduced in the Senate in March, 2009, proposes to change the definition of “fill material” to exclude slurry. S. 696, 111th Cong. (2009). Although no major congressional action has been taken, the Bill presents another potential challenge for companies like Coeur Alaska in the development of their mining operations.

The following post was written by staff member Meghan Jackson.

EPA Sues Coal- Fired Plant Owner for violating Clean Air Act: What’s Next?

This post was written by staff member Natasha Camenisch.

Chicago has struggled with poor air quality for centuries. The repercussions of being a leading industrialized city are continuing to be felt by residents and visitors alike. To this day Chicago is still battling with their ever-growing pollution problem.

The United States Environmental Protection Agency (EPA) was created in 1970 to put a limit on the amount of pollution that can be introduced in the air. EPA History, http://www.epa.gov/history/ (last visited Aug. 31, 2009). Congress passed the Clean Air Act in order to deal with pollution problems. On Thursday, August 28, 2009 the EPA and Illinois Attorney General sued Midwest Generation of violating the Clean Air Act. Michael Hawthorne, Air pollution lawsuit: Federal and state lawyers sue Midwest Generation over Illinois power plant emissions, Chicago Tribune, http://www.chicagotribune.com/health/chi-chicago-pollution-suit-28-aug28,0,2243476.story (last visited Aug. 28, 2009).

The lawsuit cites six plants owned by Midwest Generation that violate the Act. Federal records indicate that the smoke being released from the plants makes them some of the largest contributors to air pollution in Chicago and the surrounding areas. According to a Harvard School of Public Health study two of the plants alone in 2001 were responsible for “2,800 asthma attacks, 550 emergency room visits and 41 early deaths every year.” Id.

What is really interesting about this lawsuit is the fact that the Illinois EPA did not join in the suit as a plaintiff. In a previous agreement, the Illinois EPA and company officials have already agreed to clean up or close the six plants by 2018. Id. This federal lawsuit will probably force the plants to either shut the plants or improve them on a faster pace.

The Midwest Generation is the most recent power company to face tougher inquiry from the EPA. One of the plants began operating in 1903, while others in the lawsuit date to the 1940s through the 1960s. Id. The EPA finally decided that older plants should conform to modern pollution standards because of their many modifications and expansions. Two questions remain. First, whether the EPA will be able to prove Midwest Generation did violate the Clean Air Act? Second, will other older power companies face similar prosecution?