Foreshadowing the Bush Legacy on Coal

Photograph by J. Miles Carey of the Knoxville News Sentinel accompanied December 25's NYT story by Shaila Dewan, "Coal Ash Spill Revives Issue of Its Hazards."

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leg·a·cy (lg'-s)--The American Heritage Dictionary of the English Language

1. Money or property bequeathed to another by will.
2. Something handed down from an ancestor or a predecessor or from the past

In these final weeks leading up to the inauguration of President Barack Obama, the media has turned to writing stories on the legacy of George W. Bush. In the past, I've written on Mr. Bush's record on torture, secrecy, the unitary executive, concentration of wealth, the increasing deficits, the economic downturn (recession, depression?), warrantless domestic spying, reproductive rights, children's health care, organized labor and the erosion of civil liberties under the Patriot Act.

To assess what has been handed down from his eight years in office is doable. To write about what will last long term is harder. One exception, though, comes to mind: here in Appalachia, we face a permanent hole in our vistas (and our lives) in the wake of so-called mountaintop removal mining (MTR). So-called because I prefer to call it Mountain Range Destruction. This type of mining pulverizes whole mountains for their underlying coal and dumps the resulting toxin-laden rubble in headwater streams. I'd love to provide you with the latest figures on the extent of this destruction and how much has occurred during the Bush administration, but I cannot find the data. And while I might consult with Ken Ward, Jr. over at the Charleston Gazette for arcane sources, right now he's covering the coal sludge spill pictured above.

In looking at the Bush legacy on coal, in the past, I've written about:

• the National Mining and Health Safety Administration including
  
• the firing of West Virginia mining engineer Jack Spadaro for refusing to sign on to the final report on the Martin County coal sludge spill
• the appointment of industry officials in a case of "foxes guarding the henhouse
• the result on the weakening and stalling of regulations to protect miners
• resistance to the Supplemental Mine Improvement and New Emergency Response Act of 2007, in which George Miller (D-CA) attempted to address weaknesses in the MINER Act of 2006, passed as a result of West Virginia's Sago mine disaster and subsequent mining deaths in West Virginia and Kentucky.
  

• the Army Corps of Engineers and its redefinition of "waste" to "fill" in the Clean Water Act, which reversed court rulings preventing MTR rubble from being dumped into valleys
• the unsuccessful attempts to pass the Clean Water Protection Act to reverse the rule.
• the midnight change which canceled the Stream Buffer Zone rule which said that mining companies may not dispose of the rubble within 100 feet of an intermittent or perennial stream, unless the company can prove the mining activity won't hurt water quality or quantity. Environmental lawyers had successfully used this rule in court to stop MTR permits. For examples, see Ohio Valley Environmental Coalition v. the Army Corps of Engineers on October 11, 2007 and before that the Haden decision in favor or Kentuckians for the Commonwealth From May 8, 2002.
  
• the ties of Supreme Court Chief Justice John Roberts to the coal industry prior to his nomination and how he fought against citizen standing in environmental suits.
  

I'll add links to the above, as time allows. Today, though, I thought I'd go back to almost the very start of the administration, to January 29, 2001, and look at how it went on to foreshadow his legacy on coal. That's the day George W. Bush signed the executive order establishing The National Energy Policy Development Group, more commonly known as the Cheney Energy Task Force, whose recommendations served as the basis of Joe Barton's (R-TX) Energy Policy Act of 2005 which included a lot of money for the coal industry including funding for things I questioned before such as coal-to-liquids and "clean coal." The task force revealed, like later events, the administration's penchant for public secrecy and its alignment with the interests of, among others, the coal and the primarily coal-fired electric power industries.

The National Energy Policy Development Group aligns closely with industry

The task force, working quickly, produced its National Energy Policy report by May 16, 2001. The composition of the task force, according to the report, was confined to government officials. It prominently featured a quote by the president

America must have an energy policy that plans for the future, but meets the needs of today. I believe we can develop our natural resources and protect our environment.

Sounds good, as do so many turns of phrase, starting with "compassionate conservative." The plan's recommendations, however, often looked like a wish list from industry. For instance, the President should:

• issue an Executive Order to direct all federal agencies to include in any regulatory action that could significantly and adversely affect energy supplies, distribution, or use, a detailed statement on: (1) the energy impact of the proposed action, (2) any adverse energy effects that cannot be avoided should the proposal be implemented, and (3) alternatives to the proposed action.
• direct the Secretary of Energy to explore potential opportunities to develop educational programs...long-term in nature...funded and managed by the respective energy industries, and should include information on energy’s compatibility with a clean environment.
• [increase funding for]the Low Income Home Energy Assistance Program [LIHEAP [which is used primarily to pay energy bills for low-income individuals[and]... allow funds dedicated for the Weatherization and State Energy Programs to be transferred to LIHEAP
• [put] FEMA...[in charge of planning for how to address] power shortages
• direct the EPA Administrator to work with Congress to propose legislation that would establish a flexible, market-based program to significantly reduce and cap emissions of sulfur dioxide, nitrogen oxides, and mercury from electric power generators...over a reasonable period of time to allow utilities to make modifications to their plants without fear of new litigation [note no carbon dioxide caps]
  
• direct the Secretary of the Interior to work with Congress to create the “Royalties Conservation Fund”... [to] earmark potentially billions of dollars in royalties from new oil and gas production in ANWR [the Alaska National Wildlife Refuge.
• issue an Executive Order...directing federal agencies to expedite permits and other federal actions necessary for energy related project approvals on a national basis.
• [direct]to propose appropriate funding of those [energy efficiency] research and development programs that are...modeled as public-private partnerships.
• direct the Department of Energy to continue to develop advanced clean coal technology by...[i]nvesting $2 billion over 10 years to fund research in clean coal technologies [and] Supporting a permanent extension of the existing research and development tax credit.
• direct federal agencies to provide greater regulatory certainty relating to coal electricity generation through clear policies that are easily applied to business decisions.
  

You get the idea. You can read other examples here.

The court fight to reveal who met with Cheney and the Task Force regarding the report

In April 2001, Representatives Henry A. Waxman and John D. Dingell asked the Government Accountability Office (GAO) to examine the process and costs associated with the task force. Subsequently, Senators Joseph I. Lieberman, Ernest F. Hollings, Carl M. Levin, and Byron L. Dorgan, chairs of their respective committees or subcommittees, also requested this analysis.

After Cheney refused to cooperate, David Walker, the GAO's comptroller general sued for the information. On December 9, 2002, United States District Judge John D. Bates ruled against Walker. Walker did not pursue an appeal. The GAO, instead, issued an incomplete report on August 22, 2003.

The skewed task force recommendations also led Judicial Watch and the Sierra Club to sue for disclosure of just whom had met with Cheney and the task force and when. But, on June 24, 2004, the Supreme Court ruled, returning the case to the Court of Appeals for the District of Columbia.

At the time John Dean wrote that the election of John Kerry could make the suit moot. If Bush were re-elected, he noted

I remain hopeful that the underlying lawsuits in Cheney v. District Court will open the records of the National Energy Policy Development Group.

That is the right result legally and constitutionally - and the right outcome for our democracy. We deserve to know if private interests are unduly influencing purportedly governmental bodies.

Such was not to be: the court closed the book on disclosure, when it ruled May 10, 2005 that Cheney and the task force were not subject to the federal open meetings law.

An anonymous whistleblower emerges

And then years after all the stonewalling, the WaPo's energy reporter Steven Mufson heard from a whistleblower. On July 18, 2007, in Papers Detail Industry's Role in Cheney's Energy Report (transcript of chat with readers), Mufson wrote that a former White House official provided his paper with a copy of a

confidential list prepared by the Bush administration shows that Cheney and his aides had... held at least 40 meetings with interest groups, most of them from energy-producing industries.

And sure enough that list included the National Mining Association, Entergy (a company with coal-fired electric plants) and others. Mufson writes,

Jack N. Gerard, then with the National Mining Association, had a meeting with Lundquist and other staffers in February. He urged the administration to give the Energy Department responsibility for promoting technology for easing global warming and to keep the issue away from the Environmental Protection Agency, which could issue regulations on greenhouse gas emissions. The administration adopted that position.

All these meetings were held before a meeting with environmental groups on April 4, for which Cheney was not even present. And the official who supplied the list indicates

By the time of the meeting...the initial draft of the task force was substantially complete and President Bush had been briefed on its progress.

Rep. Henry A. Waxman (D-CA), chairman of the House Oversight and Government Reform Committee, who unsuccessfully pushed for details of the meetings, told Mufson

Six years later, we see we lost an opportunity to become less dependent on importing oil, on using fossil fuels, which have been a threat to our national security and the well-being of the planet.

And, I might point you to just how inefficient that dependence is, as I wrote about in the recent research of Stanford's Mark Jacobson, who found that

options [such as clean coal] that are getting the most attention are between 25 to 1,000 times more polluting than the best available options [such as wind].

And all of this dependence on coal continues to take its toll, the most recent example I wrote about being the massive fly ash spill right before Christmas at a coal-burning electric plant in Tennessee.

December 22, 2.6 million cubic yards (the equivalent of 525.2 million gallons, 48 times more than the Exxon Valdez spill by volume) of coal ash sludge ruptured a dike of a 40-acre holding pond at TVA's Kingston coal-fired power plant covering 400 acres up to six feet deep, damaging 12 homes and wrecking a train....

According to the EPA the cleanup will take at least several weeks, but could take years. Officials also said that the magnitude of this spill is such that the entire area could be declared a federal superfund site.

Of course, looks at legacy benefit from 20-20 hindsight. But isn't it interesting to see how even in his earliest days in office, the President was revealing a pattern which would emerge in the years to come, a pattern which will effect us for years in the future?

But to me, there's a larger question. While those who fail to study history are doomed to repeat it, is it really our best use of time right now to be writing about the Bush legacy? I think we've already had a lot of coverage on how Bush operated. The time for researching how Mr. Bush got us to where we are today is long gone and could be spent more wisely. Mother Jones (see, even we centrists in Appalachia quote her) said "Pray for the dead but fight like hell for the living." Translating that as a metaphor for journalism (and activism)--it's time to concentrate on holding Barack Obama accountable.