Beating swords into ploughshares? Four US coal cases

Published by MAC on 2009-06-16

BATTLE OVER TOWNSHIP RIGHTS TO BLOCK MINING

Rural communities battle coal mining, oil in Pennsylvania

Township laws aimed at curbing corporate activity in Pennsylvania may trigger a legal battle that could determine the rights of U.S. towns to stop mining, oil and gas.

Jon Hurdle

Reuters

15th June 2009

TAYLORSTOWN- A small Pennsylvania town is trying to ban coal mining in a battle being played out across the state as rural communities try to assert control over mining, gas drilling and other businesses.

Blaine Township, a community of 600 about 40 miles (65 kilometers) southwest of Pittsburgh, hopes to trigger a legal battle that could determine the rights of municipalities throughout the United States to control corporate activity.

Some legal experts say the township is highly unlikely to win that fight. For now the dispute is in federal district court, where major energy companies have sued the township over three ordinances that would ban coal mining and require companies in any business to disclose their activities to local officials.

Penn Ridge Coal LLC, a unit of Alliance Resource Partners, and Allegheny Pittsburgh Coal Co., say Blaine's laws violate their corporate rights.

The companies say the ordinances would prevent them from mining 10.6 million tons of recoverable coal beneath the township -- enough to supply electricity for 2 million people for a year.

The township has gone further than any of the 120 U.S. municipalities -- most of them in Pennsylvania -- that have passed ordinances to curb corporate activity such as factory farming or spreading sewage sludge, said its lawyer, Tom Linzey of the Community Environmental Legal Defense Fund.

Of three townships sued by corporations over their ordinances, only Blaine has refused to back down, Linzey said.

Elsewhere in Pennsylvania, towns are resisting efforts by energy companies to extract natural gas from the massive Marcellus Shale formation amid fears that toxic chemicals used in drilling are contaminating ground water and endangering human health.

CREEKS DIVERTED

In Blaine, residents are seeking to prevent coal mining -- which they expect to begin there in 2011 -- because they fear it will ruin their houses and disrupt water supplies, as they say it has in surrounding areas.

They want to block longwall mining, a technique that rips tons of coal from underground without putting anything in its place, causing the land above to sag. The practice, which has been used in coal-rich southwest Pennsylvania since the 1970s, has cracked the walls, roofs and basements of homes and opened fissures in the land, diverting or draining creeks and ponds.

In neighboring Morris Township, Tammy Bowman pointed to a pile of broken wood and concrete -- all that's left of an outbuilding she said was destroyed by shifting ground from mining beneath her 19th century farmhouse.

"It just started to drop and drop," she said. "It got so bad, you couldn't even walk in the door."

One section of her house is held up with mechanical jacks.

Near the village of Graysville, the 62-acre (25-hectare) Duke Lake, once used for fishing and boating, now sits empty after the shifting ground opened a crack in its retaining wall, environmentalists say.

Blaine's three ordinances, passed in 2006, 2007 and 2008, also assert that communities have a right under the U.S. Constitution to control business within their boundaries and that corporations do not have constitutional rights as "persons" to sue municipalities for passing laws that would hurt corporate interests.

"This illegitimate bestowal of civil and political rights upon corporations prevents the administration of laws within Blaine Township and usurps basic human and constitutional rights guaranteed to the people of Blaine Township," says the township's Corporate Rights Ordinance of 2006.

To implement the ordinances, township supervisors are now campaigning for "home rule," a legal code that transfers some powers from state to local control and is commonly used to raise taxes or increase the number of supervisors on a board.

ESTABLISHING HOME RULE

Blaine supervisors want to use home rule to establish what they say is the township's constitutional right to control corporate activity. Voters on May 19 approved a plan to set up a commission to study the proposal and recommend whether to adopt it.

A third lawsuit has been brought by Range Resources, a natural gas company, asking the court to invalidate Blaine's demand that corporations disclose their activities.

Penn Ridge Coal and Allegheny Pittsburgh Coal are asking U.S. Judge Donetta Ambrose of the Western District of Pennsylvania to declare Blaine's ordinances invalid and unenforceable.

In April, Judge Ambrose denied the township's motion to dismiss the case. She is expected to rule late this year.

Linzey predicted the case will eventually go to the U.S. Supreme Court because it pits energy companies who want to exploit one of America's richest coal seams against residents who are determined to resist what they see as rapacious mining.

He conceded the court is unlikely to overturn more than 100 years of established law that gives corporations rights as "persons" under the constitution, but he said the expected outcome would become a springboard for a popular campaign for a constitutional amendment to strip corporations of those rights.

Blaine's supervisors said they want to establish a principle of local self-government that will inspire other communities.

"Who dictates how we are going to live here?" asked Board spokesman Michael Vacca. "Should it not be us?" (Editing by Daniel Trotta and Cynthia Osterman)

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Shuttered Nevada Mohave coal plant to be dismantled

Reuters

10th June 2009

LOS ANGELES, - The Mohave Generating Station in southern Nevada, a coal power plant that was among the most polluting in the United States when it was shuttered in 2005, will be dismantled and decommissioned, its four owners announced on Wednesday.

The decision ends any chance that the coal power plant in Laughlin, Nevada, within several miles of both Arizona and California, will return to operation. The site may host a renewable energy center to take advantage of existing transmission infrastructure, said its former operator and majority owner, Southern California Edison.

Mohave was shut at the end of 2005 for reasons including a court decree initiated by environmentalists and the expiration of contracts for coal and water supplies.

Now, the 2,470-acre (1,000 hectares) plant site may be sold for any purpose a new owner chooses or developed into a renewable energy project, said Gil Alexander, spokesman for SCE, which owns 56 percent of Mohave. The plant is also owned by Arizona public utility Salt River Project (20 percent), Sierra Pacific Resources Corp.'s SRP.N NV Energy (14 percent) and the Los Angeles Department of Water and Power (10 percent.

The area of southeastern California, southern Nevada and western Arizona is seen as good for solar power. SCE said some of the Mohave land could be used for solar generation, but more study is needed to see if solar is workable at Mohave.

The dismantling effort will begin in the fourth quarter of 2009, and will cost about $30 million, SCE said.

In February 2007, Arizona public utility Salt River Project dropped plans to reopen Mohave when it and SCE failed to agree on a purchase pact.

SCE is the biggest unit of Edison International and is one of the biggest U.S. utilities, distributing electricity to about 4.9 million customers.

About a year after Mohave closed, California created rules prohibiting the import of significant amounts of new coal-fired power contracts involving out-of-state plants. California has no big coal-fired power plants.

Mohave operated as a major -- 1,580 megawatts -- coal-fired power plant from 1971 to 2005.
Mohave was blamed for smoke that hung over the Grand Canyon. It produced about 10 million tons of carbon dioxide and about 400 tons of mercury annually. It also relied on water and coal from Native American tribal territory in Arizona by a 273-mile slurry pipeline. (Reporting by Bernie Woodall; Editing by David Gregorio)

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EPA Must Withhold Locations of 'High Hazard' Coal Ash Sites

ENS

12th June 2009

Washington, DC - There are 44 coal combustion waste sites nationwide that the U.S. Environmental Protection Agency has identified as "high hazard," but the agency cannot make the locations of these hazardous sites public, Senator Barbara Boxer told reporters today. The California senator chairs the Senate Environment and Public Works Committee, which oversees the federal environmental agency.

In the aftermath of last December's spill of more than a billion gallons of coal ash waste at the Tennessee Valley Authority's Kingston coal-fired power plant, the U.S. EPA conducted inspections of the nation's coal combustion waste sites.

Agency inspectors identified several hundred coal ash piles across the country including 44 sites that pose a "high hazard." These sites are located in such a way that if the coal ash ponds were to fail, they would pose a threat to people living nearby.

But, Senator Boxer said, "the EPA, after consulting with the U.S. Army Corps of Engineers and the Department of Homeland Security, has indicated that they cannot make the list of 'high hazard' sites public."

"If these sites are so hazardous and if the neighborhoods nearby could be harmed irreparably, then I believe it is essential to let people know," Boxer said. "In that way, they can press their local authorities who have responsibility for their safety to act now to make the sites safer."

"There is a huge muzzle on me and on my staff, and the only people I can tell about this are the senators whose states are impacted," said Boxer. "We cannot talk to any of their staffs. This is unacceptable. The committee is going to continue hearings into this matter."

Today, Senator Boxer sent a letter to the Department of Homeland Security, the Army Corps of Engineers, and the EPA seeking further information on whether the public disclosure of coal ash waste sites is consistent with the treatment of other hazardous sites.

"One of the lessons we all learned from the TVA spill is that a close look at these facilities is extremely important, and we cannot rely on general assurances that these sites are safe," the senator said. "That is why I am pleased that on-the-ground inspections have begun."

At 1:00 am on December 22, 2008, a retaining wall failed on an 84-acre surface impoundment holding a half century's worth of coal ash at the TVA's Kingston power plant about 35 miles west of Knoxville, Tennessee, at the junction of the Emory and Clinch Rivers.

More than one billion gallons of coal ash "rushed down the valley like a wave," Boxer said. Ash covered nearly 400 acres, destroying three homes and damaging a dozen others. No one was injured.

"The volume of ash and water was 100 times greater than the amount of oil spilled in the Exxon Valdez disaster," Boxer said today. "The cost of cleaning up that spill has been estimated at over a billion dollars."

After the devastating Kingston spill, the Senate Environment and Public Works Committee held an oversight hearing to better understand this incident and how to avoid similar disasters in the future.

"When EPA Administrator Lisa Jackson came before our committee for her confirmation hearing a week later, she committed to move immediately to address the threat posed by coal ash waste," Boxer said today, expressing confidence Jackson would act to regulate coal combustion waste sites.

"Coal combustion waste is subject to very limited regulation," Boxer said. "In fact, there are stronger protections for household garbage than for coal ash across the country."

The EPA has the authority to regulate coal ash, which can contain toxic substances such as arsenic, selenium, lead, cadmium and chromium.

"I do have great confidence in Administrator Jackson's commitment to move forward with regulations," said the senator. "I hope and expect we will have these regulations by the end of this year."

At the site of the Kingston coal ash spill, cleanup continues. On May 11, the Tennessee Valley Authority, a federal agency that is the nation's largest public power provider, and the EPA signed an agreement by which TVA recognizes EPA's role and specialized expertise in responding to large-scale environmental clean-ups.

While TVA will retain its status as a lead federal agency, EPA will approve all work plans and schedules going forward.

"This agreement will continue the collaborative work between EPA, the Tennessee Department of Environment and Conservation and TVA, using EPA's expertise under the Comprehensive Environmental Response, Compensation and Liability Act," said TVA Senior Vice President of Office of Environment and Research Anda Ray.

"All of the agencies involved have a common goal, to meet the nation's highest standards for effectiveness, transparency, and public involvement," said Ray.

Transparency is exactly what Senator Boxer is after. The Environment and Public Works Committee will continue its ongoing investigation of coal ash waste sites and Boxer announced plans to conduct additional hearings on the 44 "high hazard" sites with the intention of learning why their locations are being withheld from the public.

Copyright Environment News Service (ENS) 2009. All rights reserved.

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U.S. court: Recusal required in Massey Energy case

By James Vicini

Reuters

8th June 2009

WASHINGTON - The U.S. Supreme Court ruled on Monday that a West Virginia judge should have disqualified himself from an appeal of a $50 million jury verdict against Massey Energy Co because the coal mining company's CEO had been a major campaign donor.

By a 5-4 vote, the justices held that West Virginia Supreme Court of Appeals Justice Brent Benjamin should have removed himself from deciding the case because Massey Chief Executive Don Blankenship had spent $3 million to help him get elected to the court.
"We find that, in all the circumstances of this case, due process requires recusal," Justice Anthony Kennedy concluded for the court majority, adding that there was a serious, objective risk of bias requiring that the judge remove himself from the case.

The top U.S. court determined that the West Virginia Supreme Court revisit its 2008 ruling that reversed a 2002 verdict by the Boone County circuit court to award $50 million to Harman Mining Corp and its president, Hugh Caperton.

Massey's stock was down 6 percent at $22.40 in afternoon trading on the New York Stock Exchange on a day when other coal company stocks were down between 2 and 4 percent.
But the company, one of the "Big Four" U.S. coal producers, said it was confident a different judge would also rule in the company's favor.

"While we are disappointed in the outcome of the Court's close vote, our outlook about the ultimate resolution of this legal matter remains positive," Shane Harvey, Massey's General Counsel, said in a statement.

"We are confident that the Harman case was properly decided by the West Virginia Supreme Court initially and believe that any new examination of the same facts and same laws by new justices should yield the same result as before."

Benjamin twice was in the majority in 3-2 decisions that overturned the $50 million jury verdict against Massey in a coal contract dispute with Harman Mining.

Blankenship had earlier spent $3 million supporting Benjamin's campaign for a seat on the court while opposing the incumbent. As a judge, Benjamin refused to recuse himself from the case, saying he could be fair and impartial.

Harman Mining has said it was forced into bankruptcy by Massey's fraudulent business practices. Massey has rejected the claims, denying responsibility for the bankruptcy.
Harman Mining cited the appearance of bias by Benjamin and said its constitutional due process rights had been violated.

Richmond, Virginia-based Massey said there were no allegations that the campaign expenditures had caused any bias on Benjamin's part.

Blankenship has said he barely knows Benjamin. Benjamin's defenders have said he has voted against Massey in several other cases, including a decision not to review a $244 million judgment against the company.

Supreme Court Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

The decision comes amid growing concern about the role money has come to play in electing state judges, with increasingly costly campaigns.

Thirty-nine states elect at least some of their judges and have varying standards on when a judge should be recused. Most states, like West Virginia, let the individual judge decide.

(Additional reporting by Steve James in New York, Editing by Lisa Von Ahn, Leslie Gevirtz)