The issue of state's rights is popular among some political elements in our society. State's rights have traditionally been invoked to allow states to ignore federal laws protecting specific subgroups in our society. Slavery is an obvious example, although an actor by the name of Ronald Reagan made a political name for himself by championing a California initiative to ignore federal fair housing laws. It was during this battle that Reagan demanded, "if an individual wants to discriminate against Negroes or others in selling or renting his house, he has a right to do so."
State's rights have recently been invoked as justification for allowing mining companies and utilities to pollute groundwater and surface water. Here is one recent example from Senator John Barrasso (R-WY). With rights come responsibilities. All the quaint talk of state's rights ignores the failure of states to obey the law in protecting water quality.
Environmental groups in Appalachia have highlighted water contamination due to mining drainage and discharge along with lax enforcement by state regulators. Four groups banded together to get access to a recently completed water quality survey conducted by the Environmental Protection Agency (EPA) in Kentucky and West Virginia.
Environmental groups have petitioned the U.S. Environmental Protection Agency to take over a key part of Kentucky’s enforcement of the Clean Water Act, saying state regulators have failed to protect rivers and streams from mining pollution.
The four groups also made public an outside analysis of an EPA survey of streams near mining activities in Kentucky and West Virginia that found 14 of 17 were toxic to aquatic life; eight of those streams are in Eastern Kentucky.
Louisville Courier-Journal
Here are several highlights from the technical report.
We carried out calculations to obtain these toxicity units (TU’s), which are the standard numerical units used to assess and quantify the total toxicity of the test water and is used in permitting criteria. The EPA technical support document (USEPA, 1991) recommends as a national chronic criterion that for most water bodies waters should not exceed a chronic toxic unit (TUc) of 1.0. Some states set their own TUc criteria, indeed in Kentucky, the allowable instream concentration of toxic substances, or whole effluents containing toxic substances is not permitted to exceed a TUc of 1.0. All of the Kentucky sites assessed contained TUc levels above this level.
Whole Effluent Toxicity Testing Report
All tested streams in Kentucky were grossly contaminated. The toxicity levels in two streams (Long Fork, Laurel Fork) were 50 times allowable limits. High levels of toxicity was found in 6 of 9 streams in West Virginia, but overall levels were not as extreme as those found in Kentucky.
The EPA survey also sampled discharge from 3 mining sites and found toxicity in violation of permit levels.
The three discharge (effluent) water samples evaluated also contained unacceptable levels of toxicity; levels high enough to trigger a review of water discharge (NPDES*) permits to assure that receiving waters meet federal and state limits on toxicity.
Whole Effluent Toxicity Testing Report
*As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States.
This report is part of a mountain of evidence that the state of Kentucky has failed miserably in its responsibilities to enforce water quality standards. (See full petition to the EPA to rescind the delegation of enforcement granted to the state here). Even the Kentucky Department of Water's own data indicate 2500 miles of impaired streams in eastern Kentuckywith coal mining as the likely culprit.
Here are some reasons why Kentucky has failed to meet its obligations to enforce the Clean Water Act.
--The Kentucky Energy and Environment Cabinet, the state agency responsible for regulating surface mines (aka mountaintop removal mines), has 4 employees responsible for review of 2,353 NPDES permits.
--The Kentucky Department of Environmental Protection has only 250 employees in the Department of Water division to monitor water quality.
--The Governor of Kentucky has cut the already limited budget of agencies involved in regulating the mining industry, stating that the environment is not a budget priority during a recession.
The coal industry will no doubt bleat something about the economic benefits of coal and some politicians will bobble their tiny heads in agreement. The economic benefits of coal to the people of Kentucky is somewhere between a myth and absolute lie. The 20 counties in eastern Kentucky most directed affected by toxic coal waste and mountaintop removal mining are among the top 100 poorest counties in the country. The people of eastern Kentucky are being exploited, bullied, and poisoned by mining companies in ways that are difficult to distinguish from the treatment of people in third world countries by extraction industries. As for the state budget, the costs of coal outpace the revenues generated by an estimated 115 million dollars in 2006.
Coal is responsible for an estimated $528 million in state revenues and $643 million in state expenditures. The $528 million in revenues includes $224 million from the coal severance tax and revenues from the corporate income, individual income, sales, property (including unmined minerals) and transportation taxes as well as permit fees. The $643 million in estimated expenditures includes $239 million to address the industry’s impacts on the coal haul road system as well as expenditures to regulate the environmental and health and safety impacts of coal, support coal worker training, conduct research and development for the coal industry, promote education about coal in the public schools and support the residents directly and indirectly employed by coal. Total costs also include $85 million in tax expenditures designed to subsidize the mining and burning of coal.
Apparently the state of Kentucky has decided that ignoring its regulatory responsibilities under the Clean Water Act is the best way to make sure coal revenues and expenditures are nearly equal. Paraphrasing the Great Communicator, 'if a mining company wants to poison the water in Kentucky, they should have a right to do so as long as state officials do not object.' Instead of skin color, the prejudicial characteristic appears to be socioeconomic status. In Kentucky, it is acceptable to destroy the land and poison the water of poor communities.
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Speaking of state's rights, let me leave you with some fun facts related to coal and state's rights. One of few successful Supreme Court challenges to federal regulation of the coal industry came in the case of Carter v Carter Coal Company. The owner of the coal company sued his own company to prevent it from complying with the Bituminous Coal Conservation Act of 1935. The bill was designed to protect miners during the Great Depression from exploitation and imposed a "tax" on companies that failed to comply. James Walter Carter, son and heir of mining and railroad magnate George Lafayette Carter, refused to comply with the labor protections and pay the fee for noncompliance.
Facts of the Case:
In 1935, Congress enacted the Bituminous Coal Conservation Act, also known as the Guffey Coal Act. The Act regulated prices, minimum wages, maximum hours, and "fair practices" of the coal industry. Although compliance was voluntary, tax refunds were established as incentives to abide by the regulations. Carter, a stockholder, brought suit against his own company in an attempt to keep it from paying the tax for noncompliance. This case was decided together with R.C. Tway Coal Co. v. Clark, R.C. Tway Coal Co. v. Glenn, and Halvering v. Carter.
Question:
Did the Bituminous Coal Conservation Act of 1935 exceed congressional powers under the Commerce Clause?
Conclusion:
In a 5 to 4 decision, the Court held that the 1935 Act overstepped the bounds of congressional power. The Court ruled that "commerce" is plainly distinct from "production." Employing workers, setting wages and working hours, and mining coal were found to be part of the local process of production, separate from any trade of goods that could be regulated under the Commerce Clause. In striking down the law, Justice Sutherland argued that "[e]verything which moves in interstate commerce has had a local origin. Without local production somewhere, interstate commerce. . . would practically disappear."
Summary, U.S. Supreme Court
James Walter Carter was little more than a spoiled brat that inherited the Carter Coal Company and had nothing but contempt for miners and unions. In 1947 he sold the company rather than pay health and retirement benefits to miners as part of a United Mine Workers collective bargaining agreement. And if you have been to the Bronx Zoo, you have probably visited the Carter Giraffe Building. Carter donated 20 million dollars to the zoo to fund the exhibit and there is a line of male giraffes named James dating back to 1982.
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