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Jul 2010
Regulating History: A Conversation with Joe Childers

Joe Childers is an environmental lawyer, a founding member of Kentuckians for the Commonwealth, and chairman of the Kentucky Mine Safety Review Commission. In 2009 he was a finalist for director of the U.S. Office of Surface Mining, raising expectations that the Obama administration might begin to enforce the Surface Mining Control and Reclamation Act for the first time since 1981. Here, he is interviewed by Erik Reece, author of the critically acclaimed Lost Mountain: A Year in the Vanishing Wilderness: Radical Strip Mining and the Devastation of Appalachia (Riverhead Books, 2006).

Reece: Let’s talk about surface mining and mountaintop removal. In the 30 years that you have been litigating on behalf of coalfield citizens, it seems like the strip mining has intensified so much. Have the issues changed?

Childers: The issues have changed. When I first started, mountaintop removal was just becoming a form of mining that more and more companies were going to. But when I started in the late ’70s looking into this, and in the ’80s as a lawyer, there were still a lot of small surface mining companies. As the years went by, particularly in the ’80s, there was a real emphasis on concentration—more and more smaller companies sold out to bigger companies. And you started seeing the Shell Oil companies come into it. You started seeing German companies, other international companies, come in and buy these smaller Appalachian mining companies. So as a result, the capital was there, the funding was there, to have bigger and bigger operations, put together bigger tracts, the kind of capital-intensive industries necessary to do mountaintop removal–type mining. So you had the big machines.

All of a sudden, the drag lines started appearing in Perry County in 1982–83. And you saw more and more of that type of mining take place over a larger area. They can remove more overburden [anything that isn’t coal] and make it profitable to mine with fewer and fewer miners. In 1950, U.S. coal production was 560 million tons; in 2003, coal production was over 1 billion tons, almost double the tonnage. There has been a steady shift in coal production away from eastern coal production to western coal production. We’re going to continue to see that, I suspect, through the years. In the western U.S., 60 million tons were mined in 1973 and 548 million tons in 2003. So just in that 30-year period, more than a ninefold increase in coal production from the western states. In the U.S. in ’73, there were 152,000 miners employed and in 2003, 71,000. And that’s continued to decline since 2003. You can see in the Appalachia region, it’s really stark: 124,000 miners in ’73 and only 46,000 left today. So they’re mining more coal in Appalachia than they were 30 years ago with about a third the number of miners.

Reece: Yet the industry always seems to blame environmentalists and regulators for the loss of jobs.

Childers: Well, there’s been no loss of production. While cutting the workforce in half, they’ve doubled production. So what that means to me is there is a lot of profit being made in the industry—I don’t think the industry would deny that—the question is where does it go? We know that it doesn’t stay in Appalachia. So I think that the reason we have such poverty in the midst of great wealth is that the wealth is not owned by the people in eastern Kentucky and West Virginia. The people of central Appalachia don’t own that wealth. And when you don’t own it, you don’t have any control over it.

Reece: In the last decade, many of us in the environmental movement were deeply troubled by the decisions and rule changes made by the Office of Surface Mining (OSM). The Bush administration brought in industry people such as Steven Griles to regulate the very industries they worked for, the industries that they had no interest in regulating. Many who have followed and admired your work were disappointed when President Obama named Joe Pizarchik to head OSM. And I hope this doesn’t sound impertinent, but if you had been tapped for the job, what would have been your first order of business? Or, in other words, where do you think OSM needs to go from here?

Childers: Well, that’s a tough question, but it’s one that I contemplated quite a bit when I was up for consideration. There were several things that I was asked about during the interview process about OSM. The first point I made is that OSM is a federal agency created in 1977 when the Surface Mining Control and Reclamation Act [SMCRA, pronounced “smack-ra”] was passed. It was an agency created to oversee the regulation of surface coal mining and the surface effects of underground coal mining throughout the country. Congress recognized that the states weren’t capable of regulating the surface effects, the environmental effects of coal mining, and there had to be a federal law. So for the first three or four years the federal agency actually did that, and most of the inspectors who were hired during that period, many of whom are still with the agency even after 30 years, are good, competent people who really set out to do the job, and they did an amazing job in the early years of the agency.

Since 1980, when Ronald Reagan was elected, there have been a series of presidents and directors and people within the Department of the Interior who have systematically gone about dismantling some of the best things the agency [OSM] did when it was first created. Any good law—and the Surface Mining Act is a good law—has to be enforced, and it has to be enforced vigorously. Until alternative sources of energy are developed, we’re going to depend on coal to a large degree for our energy needs in this country. That’s an inescapable fact. So it is really important that it be mined in a responsible manner, that it be mined in the manner Congress intended for it to be mined.

I think EPA [the Environmental Protection Agency] has stepped in where OSM has left a void. But there are things that OSM, as an agency within the Department of the Interior, can do that EPA can’t do. EPA has limited authority to regulate mining, principally in regards to water quality. Protection of the hydrologic balance is extremely important under both the Clean Water Act—EPA’s responsibility—and SMCRA—OSM’s responsibility. This is one of the key ingredients of the Surface Mining Act. A coal company has to come up with a plan to protect the hydrologic balance. Kentucky is supposed to do something called a cumulative hydrologic impact assessment. That means they’re supposed to look at not only the effect of this mining operation on the groundwater, but the effect of all mining in the area. And the cumulative effect is supposed to be detailed in a report that the state does. Well, that’s never been enforced. If you talk to the state regulators they’ll tell you it’s a joke. That was one of the things that I told the [Obama] administration needs addressing.

Reece: On his way out the door, George W. Bush overturned the Stream Buffer Zone rule, which prohibited mining within 100 feet of steams. Do you believe the Obama administration is looking to overturn it?

Childers: I believe the 11th hour action of the Bush administration will be reversed. EPA says that the science is going to have to be involved in terms of water quality downstream from valley fills, and the agency published a report last week [April 2010] that said there are major water quality problems downstream from these valley fills. EPA is sending out guidance that says coal operators are going to have to restore 95 percent of the organisms in the stream; they are going to have to preserve 95 percent of these organisms downstream from these valley fills. I think the only way the mining companies can comply with that is by doing what the Surface Mining Act originally intended, and that is to minimize these fills. What’s happened over the last 30 years is that they’ve maximized these fills. Two thousand miles of Appalachian streams have been covered by mining waste. One of the things that I pointed out when I was being considered for director [of OSM] was that the states have been allowed to ignore the requirement that land be restored to its AOC, or approximate original contour. It’s a lot cheaper to dump the overburden in a valley, but if you take it and put it back on top of the mine site, you are going to restore that elevation back to close to what it was.

But back to the Stream Buffer Zone rule that you asked about, a new memorandum of understanding between EPA, OSM, and the Army Corps of Engineers indicated that OSM would look at restoring the rule by the end of 2009. OSM will issue guidance concerning appropriate application of the Stream Buffer Zone rule and other related rules and will ensure that the states are implementing their counterpart provisions. That’s the intent—I understand implementation of restoring the rule is ongoing.

Reece: Do you think we should take seriously Obama’s talk about clean coal?

Childers: President Obama’s Recovery and Reinvestment Act allocated about $3 billion for clean coal research projects. The Kentucky Geological Survey has recently proclaimed as successful an experimental effort down in western Kentucky to capture and sequester carbon. They had to actually pipe or truck the carbon dioxide there to sequester it, but they did, and they are claiming a success. There are a lot of questions that are raised by that. First of all, sources indicate that you will not be able to economically and feasibly do that with power plants for another 10–15 years. And then there’s the cost involved. So the question is, do we have 10 or 15 years of a deteriorating and warming climate before we can sequester and make that coal clean, just from a carbon dioxide standpoint? You also have all the issues with mercury and other heavy metals in burning coal.

A lot of people say that the best way to clean coal is to not use as much coal. Conservation demand-side management tightens up people’s homes. Continuing to reduce the demand for coal is the best way to make it cleaner. The thing that we need to not overlook at the national policy-making level in this country is that if you’re going to talk about clean coal, you have to talk about it from the inception of coal mining. You have to talk about it from the time that it’s removed from the earth. So often now it’s about the burning of coal; nobody thinks about clean coal until it arrives at the power plant, and then you’ve got to figure out how to make it clean so it doesn’t destroy the atmosphere. The fact is, for years and years and years, the true cost of coal has never been borne by the end user. If you live in Lexington or you live in Chicago, you’re turning on your light switch and you’re paying for that, you’re paying for electricity, but truthfully you’re only paying for a fraction of the true cost of mining coal. My clients, the ones I’ve seen face-to-face in eastern Kentucky, have often borne the real cost of mining coal, which is the impact on their community, the impact on their lives, on their water sources, on their roads.

Reece: The U.S. Geological Survey says that only 9 percent of the remaining coal resources are economically recoverable. How does the region’s future look to you? Do you have any ideas about what a post-coal economy in Appalachia might look like?

Childers: Well, I think cleaning up over 100 years of environmental degradation is going to be a big job; it’s going to be a labor-intensive job. The policymakers have to be creative, but people in their communities have to be creative, too. They have to be part of the discussion. How do they want their communities to look post-coal? Are there going to be green jobs available? Is there going to be land available? This is something that we need to discuss in conjunction with the landowners; and the landowners, as I pointed out earlier, are largely absentee corporations. It is going to be in their best interest to join in the discussion about what the future of Appalachia looks like. We’re going to have to put them at the table to have the discussion as to how we get the land back and how we use it for the communities’ needs. I do think that a large part of it is going to be environmental restoration and conservation, which is going to be absolutely necessary.

Reece: Do you see any signs that the industry might be changing for the better?

Childers: They are going to have to cooperate. There’s no question, with the administration’s new emphasis, mainly coming out of the EPA, that they are going to have to clean up the streams. If they don’t cooperate, they’re going to be out of business. We know there are ways that these companies can mine without doing these large valley fills. They can continue to surface mine, but they have to be more responsible about it. They have to put the fill back up on the mountain where the Surface Mining Act intended for it to go, and they have to be more creative in their post-mining land use criteria.

There are plenty of flat areas throughout Appalachia where you can place fill on the mountain and, in combination with the Appalachian Regional Reforestation Initiative [ARRI], plant trees back on the mine sites. In that loosely compacted soil, trees grow quickly. They hold soil in place and absorb carbon dioxide. They do what nature intended trees to do.

Reece: The industry-driven “Friends of Coal” campaign has been quite successful around here. You see the bumper stickers everywhere. It seems odd to me in a way, because historically the industry has done very little for the actual miners, and we see that right now [in spring 2010] in the West Virginia tragedy.

Childers: I really think that the industry—and I’m not going to lay this all on the industry; I think the environmentalists are equally at fault to some degree in creating this us-versus-them mentality—has been very successful in striking fear into their own employees about how, because of environmental regulation, they aren’t going to be able to mine coal. I think that’s a false campaign. We’ve seen that industry has doubled coal production over the last 30 years in this country with less than half the number of miners. I think the fact that we don’t have an alternative economy in central Appalachia has really fed into this “Friends of Coal” campaign, which has had success in getting people to be more militant. We’ve seen real militancy in West Virginia and somewhat in Kentucky: the environmentalists versus the miners. I hate to see this. I think it’s a very negative development, keeping us from getting where we want to be.