News from our good friends at the Wise Energy for Virginia Coalition.
Virginia General Assembly Vote will Weaken State Enforcement of Clean Water Act
——————————————————-
Appalachian Voices Tom Cormons (301) 910-8973
Southern Environmental Law Center Marirose Pratt (434) 977-4090
Sierra Club, Virginia Chapter JR Tolbert (706) 594-5487
Chesapeake Climate Action Network Jamie Nolan (240) 396-2022
Southern Appalachian Mountain Stewards Jane Branham (276) 679-7505
————————————————————————————————————–
The Virginia Senate today passed legislation (SB 1025) that will severely restrict state regulators’ ability to protect public health and the environment from pollution from surface coal mines under the Clean Water Act. An identical bill (HB 2123) passed in the House of Delegates last month, and Governor Bob McDonnell is expected to sign the legislation into law.
This legislation limits the ability of state regulators to use water quality testing to make permitting and enforcement decisions involving pollution discharges from coal strip mines. In addition, the bills revoke the citizen State Water Control Board’s primary authority for administering the Clean Water Act’s National Pollution Discharge Elimination System (NPDES) permits for surface mining discharges, transferring this authority to the Department of Mines, Minerals and Energy.
Senators Ticer, Whipple, McEachin, Petersen, and Marsden stood up for clean water and opposed the Senate bill in committee on Monday.
“Stream monitoring and testing for toxic discharges are indispensable tools for enforcing clean water laws, and that is precisely why Big Coal is going all out to curtail their use,” said Tom Cormons, Virginia Director for Appalachian Voices. “What’s astounding is that the General Assembly has passed this coal industry bill, tying our own state regulators’ hands by restricting their ability to use standard water testing.”
There is also serious concern about potential legal repercussions for the state as a result of this legislation. “By hamstringing the Director’s ability to adequately test water quality, this bill removes safeguards for clean water,” said Marirose Pratt, an attorney with the Southern Environmental Law Center. “It conflicts with Virginia’s longstanding agreement with EPA and places Virginia in jeopardy of losing authority to administer our own Clean Water Act program.”
Pollution discharges from strip mines pose a major threat to downstream waterways. Discharges from mountaintop removal mining operations, which are prevalent in the state, are of particular concern. Strip mining – including mountaintop removal – is more widespread in Southwest Virginia’s Wise County than all but one other county in Appalachia.
More than 150 miles of headwater streams in the state have been eliminated by the practice and downstream waterways are also severely impacted.
“Our waterways are already so toxic, it’s hard to believe the state is taking tools away from those charged with safeguarding them,” says Jane Branham of the Southern Appalachian Mountain Stewards. “Many of our streams are already loaded with black sediment from these mines and are void of life.” The reputable journal Science cited Virginia in a peer-reviewed paper last year on mountaintop mining impacts. The paper describes declines in stream life and high levels of toxic metals below mine sites, as well as elevated rates of human mortality, and heart, lung, and kidney disease in the vicinity of mountaintop removal operations.
“Big Coal wants to operate above the law,” said Chelsea Harnish, Virginia policy coordinator for the Chesapeake Climate Action Network. “The coal industry is already fighting clean air regulations at the federal level, and now here in Virginia the industry is close to being granted its own loophole allowing coal mining to pollute our waterways, completely unchecked.”
“Clean water and clean air have been assaulted from day one of this General Assembly session. Whether it’s loopholes in the permitting process for coal mines, or extending coal subsidies in Virginia, this General Assembly has done all they can to create a safety net for the coal industry,” said J.R. Tolbert, assistant director of the Virginia Chapter of the Sierra Club. “If we didn’t know any better, you’d think Virginia had become a corporate welfare state.”
JW RandolphRaised on the banks of the Tennessee River, JW's work to create progress in his home state and throughout Appalachia has been featured on the Rachel Maddow Show, The Daily Kos and Grist. He served first as Appalachian Voices’ Legislative Associate and then Tennessee director until leaving to pursue a career in medicine in 2012.
PREVIOUS
This nefarious insanity leads one to conclude that Yeats had it about right: “The blood-dimmed tide is loosed, and everywhere the ceremony of innocence is drowned.” Metaphysically, this has got to qualify as evil. Legally, the bill is of highly dubious validity. As Ms. Pratt of the SELC suggested in your blog, this law, when signed by Governor McDonnell is going to make the state highly susceptible to an EPA takeover of Virginia’s enforcement of the CWA (if the agency is wearing its progressive, rather than corporate Obama face this year, and one never really knows with either the EPA or the president).
Further, as I’ve suggested earlier (but it seems to bear further emphasis), the bill seems especially vulnerable to both a state and federal constitutional challenge under separation of powers principles. Article III of the Virginia Constitution, entitled Division of Powers, states that “The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others…” We all know of the federal constitutional doctrine of said separation, and it seems quite logical to argue that a legislative action which constitutes both a de jure and de facto encroachment into the role of the executive branch (as performed through administrative agencies), is unconstitutional on its face.
But then, we’re talking logic and justice here, which are quite different creatures than those that operate when Big Coal sinks its ugly teeth and money into the processes of governance. And the beat goes on. Thanks again, JW, for these wonderfully informative posts.