11.15.2013 1

Obama expands war on coal to ash

EPABy Nathan Mehrens

Observers of the war on coal that is being waged by the Obama Administration and its allies know that the war centers not just on the actual burning of coal, but on all parts of coal’s lifecycle.  These range from efforts to oppose extraction, transportation, burning, and finally the transportation and reuse of coal ash, a byproduct from burning coal.

While the efforts to make it impossible to burn coal are well known, lesser known is the battle over coal ash.  Coal ash has a number of uses; it can be recycled into building products and used for road construction.  It can also be used for fill in certain construction applications.

Environmental groups, knowing that the recycling of coal ash is a necessary part of the process for power plants, have sought to highly regulate any uses of it, including attempts to get it classified as a hazardous waste.  If the ash is classified as hazardous then the costs of dealing with it will increase greatly, leading to higher costs for power plants that use coal.  This, of course, makes other means of power generation that are favored by environmental groups more economically viable if coal becomes more expensive to use.

A large part of the battle against coal ash has been occurring at the Environmental Protection Agency (EPA) with the assistance of several environmental groups.

Investigative work by Americans for Limited Government using the federal Freedom of Information Act (FOIA) to obtain records disclosed a very close working relationship between these plaintiff groups and the EPA.  We filed FOIAs with the EPA seeking information on their communications and meetings with these groups.  After much legal wrangling we extracted approximately 800 pages of responsive records from the EPA.  The records document a large number of meetings and communications between the EPA and these groups.  The groups were invited to meetings, they passed along studies, sought and obtained high level meetings with the EPA, and generally did everything possible to push the EPA to regulate coal ash out of existence.

The EPA did publish a notice of proposed rulemaking on June 21, 2010.  This proposal generated over 422,000 comments.  When the EPA didn’t finalize the regulation in the timeframe the environmental groups would have liked, they turned to litigation.  The environmental groups sued the EPA on April 5, 2012.  The suit among other things sought a court order for the EPA to finalize a regulation on coal ash.

An October 29, 2013 decision by the U.S. District Court for the District of Columbia in this case means that more regulation over coal ash is likely to occur in the near future.  In the decision the court granted partial summary judgment against the EPA over the EPA’s alleged failure to properly regulate coal ash.  As a result, the EPA must now provide a report to the court detailing “when it proposes to complete its review and revision” of the coal ash regulations.

Now that is it under court order, the EPA will doubtlessly be happy to finalize more restrictions on coal ash, to the delight of the environmental groups.  The EPA will be happy because the court order gives it political cover to finalize a regulation, because they can now point to the order as the reason for the regulation, thus avoiding industry and Congressional backlash.  The environmental groups are happy because they will likely get what they want in the regulation.  In the end though, we all will suffer due to increased electricity costs and the resulting negative effects that increasing energy costs have on domestic manufacturing and other industries.

At a time of very high unemployment when millions have completely given up on finding work, we should not be creating additional barriers to job creation.  Unfortunately, short of Congress getting involved and changing the law, the actions of environmental groups and the EPA, with the acquiescence of the courts, are doing just that.

Nathan Mehrens is the President of Americans for Limited Government.

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