Mountaintop Mining: Background on Current Controversies

Claudia Copeland
Specialist in Resources and Environmental Policy

Mountaintop removal mining involves removing the top of a mountain in order to recover the coal seams contained there. This practice occurs in six Appalachian states (Kentucky, West Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It creates an immense quantity of excess spoil (dirt and rock that previously composed the mountaintop), which is typically placed in valley fills on the sides of the former mountains, burying streams that flow through the valleys. Mountaintop mining is regulated under several laws, including the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA).

Critics say that, as a result of valley fills from mountaintop mining, stream water quality and the aquatic and wildlife habitat that streams support are destroyed by tons of rocks and dirt. The mining industry argues that mountaintop mining is essential to conducting surface coal mining in the Appalachian region and that it would not be economically feasible there if operators were barred from using valleys for the disposal of mining overburden. Critics have used litigation to challenge the practice. In a number of cases discussed in this report, environmental groups have been successful at the federal district court level in challenging issuance of permits for mountaintop mining projects, but each has been later overturned on appeal. Nonetheless, the criticisms also have prompted some regulatory changes, also discussed here.

In June 2009, officials of the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the Department of the Interior signed a Memorandum of Understanding outlining a series of administrative actions under these laws to reduce the harmful environmental impacts of mountaintop mining and surface coal mining in Appalachia. The plan includes a series of near-term and longer-term actions that emphasize specific steps, improved coordination, and greater transparency of decisions. The actions are being implemented through regulatory proposals, guidance documents, and review of applications for permits to authorize surface coal mining operations in Appalachia. Viewed broadly, the Administration’s combined actions on mountaintop mining displease both industry and environmental advocates. The additional scrutiny of permits and more stringent requirements have angered the coal industry and many of its supporters. Controversy also was generated by EPA’s January 2011 veto of a CWA permit that had been issued by the Corps for a surface coal mining project in West Virginia. At the same time, while environmental groups support EPA’s steps to restrict the practice, many favor tougher requirements or even total rejection of mountaintop mining in Appalachia. Federal courts have recently rejected several of the Administration’s actions, including overturning EPA’s veto of the West Virginia mine permit, enhanced permit review procedures, and EPA guidance on factors used in evaluating water quality impacts of Appalachian surface mining permits.

This report provides background on regulatory requirements, controversies and legal challenges to mountaintop mining, and recent Administration actions. Congressional interest in these issues also is discussed, including legislation in the 111th Congress seeking to restrict the practice of mountaintop mining and other legislation intended to block the Obama Administration’s regulatory actions. Attention to EPA’s veto of the West Virginia mining permit and other federal agency actions has increased in the 112th Congress. Several bills have been introduced to clarify or restrict EPA’s authority to veto CWA permits issued by the Corps (H.R. 457/S. 272; H.R. 517; H.R. 960/S. 468; and H.R. 2018).


Date of Report: September 21, 2012
Number of Pages: 20
Order Number: RS21421
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Robert Meltz
Legislative Attorney

This report surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto.

At the threshold of many climate-change-related lawsuits are two barriers—whether the plaintiff has standing to sue and whether the claim being made presents a political question. Both barriers have forced courts to apply amorphous standards in a new and complex context.

Efforts to mitigate climate change—that is, reduce greenhouse gas (GHG) emissions—have spawned a host of legal issues. The Supreme Court resolved a big one in 2007—the Clean Air Act (CAA), it said, does authorize EPA to regulate GHG emissions. Quite recently, a host of issues raised by EPA’s efforts to carry out that authority were resolved in the agency’s favor by the D.C. Circuit. Another issue is whether EPA’s “endangerment finding” for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions under other CAA authorities. Still other mitigation issues are (1) the role of the Endangered Species Act in addressing climate change; (2) how climate change must be considered under the National Environmental Policy Act; (3) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere.

Liability for harms allegedly caused by climate change has raised another crop of legal issues. The Supreme Court decision that the CAA bars federal judges from imposing their own limits on GHG emissions from power plants has led observers to ask: Can plaintiffs alleging climate change harms still seek monetary damages, and are state law claims still allowed? The one ruling so far says no to both. Questions of insurance policy coverage are also likely to be litigated. Finally, the applicability of international law principles to climate change has yet to be resolved.

Water shortages thought to be induced by climate change likely will lead to litigation over the nature of water rights. Shortages have already prompted several lawsuits over whether cutbacks in water delivered from federal projects effect Fifth Amendment takings or breaches of contract.

Sea level rise and extreme precipitation linked to climate change raise questions as to (1) the effect of sea level rise on the beachfront owner’s property line; (2) whether public beach access easements migrate with the landward movement of beaches; (3) design and operation of federal levees; and (4) government failure to take preventive measures against climate change harms.

Other adaptation responses to climate change raising legal issues, often property rights related, are beach armoring (seawalls, bulkheads, etc.), beach renourishment, and “retreat” measures. Retreat measures seek to move existing development away from areas likely to be affected by floods and sea level rise, and to discourage new development there.

Natural disasters to which climate change contributes may prompt questions as to whether response actions taken in an emergency are subject to relaxed requirements and, similarly, as to the rebuilding of structures destroyed by such disasters just as they were before.

Finally, immigration and refugee law appear not to cover persons forced to relocate because of climate change impacts such as drought or sea level rise.


Date of Report: September 10, 2012
Number of Pages: 34
Order Number: R42613
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Aviation and the European Union’s Emission Trading Scheme

Jane A. Leggett
Specialist in Energy and Environmental Policy

Bart Elias
Specialist in Aviation Policy

Daniel T. Shedd
Legislative Attorney

Beginning January 1, 2012, most carbon dioxide (CO2) emissions from commercial flights to, from, and within the European Union (EU) are covered by the EU Emission Trading Scheme (EU ETS). Flights are covered regardless of whether the airline or operator is based in the EU region. The EU ETS caps aviation emissions of CO2 in 2012 at 97% of the average in 2004-2006 and at 95% in each year 2013-2020. Each April, beginning 2013, covered aircraft operators must turn in emission “allowances” (permits) equal to the previous year’s covered emissions. Airline operators receive free allowances for 82%-85% of their 2010 emissions. Airlines that have more allowances than they need may sell them or save them for future use. Airlines that need more allowances may buy them from EU auctions, other carriers, other emission sources in the EU ETS, brokers, or international emission trading mechanisms. A small reserve of free allowances is available for new or rapidly expanding airlines.

The EU law covering international aviation emissions is a significant move in a two-decade process concerning whether and how aviation emissions of CO2 may be abated. Even among those who agree on the benefits of reducing greenhouse gas (GHG) emissions, how to share reductions across nations and sectors remains controversial internationally and within countries. Emissions from international air transport pose a particular challenge.

The 1997 Kyoto Protocol (to which the United States is not a Party) specified that Parties should pursue limitation or reduction of GHG emissions from aviation fuels, working through the International Civil Aviation Organization (ICAO), an agency of the United Nations. In 2008, the EU cited a lack of “substantive progress” in ICAO and legislated to include aviation in its existing EU ETS by 2012. ICAO members have agreed to a variety of voluntary actions and goals. In October 2011, faced with impending inclusion of aviation emissions in the EU ETS, the ICAO Council agreed to accelerate its work, including continuing to explore market-based measures, CO2 standards for new aircraft, and other options. In mid-2012, ICAO’s environment committee approved guidelines for how to measure CO2 emissions from new aircraft as a step toward possible agreement among countries to regulate those emissions.

EU officials have stated their preference for agreeing on global, binding measures in ICAO. One official stated that the EU would agree to suspend inclusion of aviation in the ETS only if a new global ICAO scheme met three conditions: it must deliver more emissions reductions than the EU ETS on its own; it must have targets and measures; and any action must be non-discriminatory and apply to all airlines. Alternatively, EU law allows exemptions for incoming flights from countries that have adopted “equivalent measures” to reduce emissions. Some countries are likely negotiating with the EU for an equivalent measures exemption for their airlines.

Air carriers from the United States and other countries vociferously object to including international aviation in the EU ETS. The U.S. government continues to press the EU to exclude foreign carriers. In October 2011, the House passed H.R. 2594, the European Union Emissions Trading Scheme Prohibition Act of 2011, prohibiting U.S. aircraft operators from participating in the EU ETS. It also would direct the Administration to negotiate and take other actions to ensure that U.S. civil aircraft operators are not penalized by unilateral EU regulation of GHG emissions. The Senate Commerce Committee approved S. 1956 on July 31, 2012, a similar bill with more flexibility, in parallel with a U.S.-hosted meeting with other countries opposed to the scheme. In addition, House and Senate conferees on reauthorization of the Federal Aviation Administration (FAA) agreed in January 2012 to a sense of the Congress resolution opposing the EU action.


Date of Report: September 17, 2012
Number of Pages: 46
Order Number: R42392
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Clean Water Act and Pollutant Total Maximum Daily Loads (TMDLs)

Claudia Copeland
Specialist in Resources and Environmental Policy

Section 303(d) of the Clean Water Act (CWA) requires states to identify waters that are impaired by pollution, even after application of pollution controls. For those waters, states must establish a total maximum daily load (TMDL) of pollutants to ensure that water quality standards can be attained. A TMDL is both a quantitative assessment of pollution sources and pollutant reductions needed to restore and protect U.S. waters and a planning process for attaining water quality standards. Implementation of section 303(d) was dormant until states and the Environmental Protection Agency (EPA) were prodded by lawsuits. The program has been controversial, in part because of requirements and costs faced by states to implement this 40-year-old provision of the law, as well as industries, cities, farmers, and others who may be required to use new pollution controls to meet TMDL requirements.

Despite controversies, the TMDL program has become a core element of overall efforts to protect and restore water quality. States and EPA develop several thousand TMDLs annually, but many more need to be completed. The most recent information indicates that over 41,000 waterbodies do not meet water quality standards and need a TMDL to initiate corrective measures. The 303(d) program has evolved, and especially during the last decade, EPA and states have addressed more complex issues, including TMDLs involving both point (direct discharges) and nonpoint sources (diffuse discharges) such as stormwater; TMDLs for less-traditional causes of impairment such as ocean acidification and climate change; TMDLs for pollutants such as mercury that involve coordination among water, air, and other environmental programs; and multi-jurisdictional TMDLs.

The largest multi-jurisdictional TMDL, for the Chesapeake Bay watershed, has drawn considerable attention. It was developed by EPA and was necessitated because previous largely voluntary restoration efforts by the Bay jurisdictions were insufficient to attain water quality standards. It addresses all segments of the Bay and its tidal tributaries that are impaired from discharges of nitrogen, phosphorus, and sediment, with a goal of having TMDL implementation measures in place by 2025. The Chesapeake Bay TMDL has a number of novel elements, including Watershed Implementation Plans in which the jurisdictions identify specific measures to achieve needed pollutant reductions, and biennial reports to the public on progress in implementation. The Bay TMDL has been controversial with a number of groups concerned about the costs of implementation and the likely mandatory nature of many of EPA’s and states’ actions. EPA’s authority to develop the TMDL has been challenged in a lawsuit.

When a TMDL is developed, implementation is a major uncertainty. First, section 303(d) does not require implementation, and states’ strategies for implementation vary widely. Only a few have laws requiring implementation plans, while many others rely on less structured policies. Second, a number of barriers to implementation can be identified. The most prominent is insufficient funding, but technical impediments such as insufficient scientific data also are a challenge. At the same time, factors that may aid effective implementation can be identified, including active involvement of stakeholders and governments, and adequate resources.

The TMDL program is in a period of transition and increasingly is addressing new challenges— more complex TMDLs, larger scale impairments, and nonpoint sources. Other than recent oversight hearings on the Chesapeake Bay TMDL, Congress has not shown active interest in the TMDL program for more than a decade. Some stakeholders, especially states, believe that several issues present Congress with an opportunity to examine the TMDL provisions of the CWA.


Date of Report: September 21, 2012
Number of Pages: 22
Order Number: R42752
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Cooling Water Intake Structures: Summary of EPA’s Proposed Rule

Claudia Copeland
Specialist in Resources and Environmental Policy

Thermoelectric generating plants and manufacturing facilities withdraw large volumes of water for production and, especially, to absorb heat from their industrial processes. Water withdrawals by power producers and manufacturers represent more than one-half of water withdrawn daily for various uses in the United States. Although water withdrawal is a necessity for these facilities, it also presents special problems for aquatic resources. In particular, the process of drawing surface water into the plant through cooling water intake structures (CWIS) can simultaneously pull in fish, shellfish, and tiny organisms, injuring or killing them. Congress enacted Section 316(b) of the Clean Water Act (CWA) specifically to address CWIS.

Regulatory efforts by the Environmental Protection Agency (EPA) to implement Section 316(b) have a long and complicated history over 35 years, including legal challenges at every step by industry groups and environmental advocates. Currently most new facilities are regulated under rules issued in 2001, while rules for existing facilities were challenged and remanded to EPA for revisions. In response to the remands, in March 2011 EPA proposed national requirements affecting approximately 1,150 existing electric powerplants and manufacturing facilities. Even before release, the proposed regulations were highly controversial among stakeholders and some Members of Congress. The issue for Congress has been whether a stringent and costly environmental mandate could jeopardize reliability of electricity supply in the United States. Many in industry feared, while environmental groups hoped, that EPA would require installation of technology called closed-cycle cooling that most effectively minimizes the adverse environmental impacts of CWIS, but also is the most costly technology option.

The EPA proposal declined to mandate closed-cycle cooling universally and instead favors a less costly, more flexible regulatory option. EPA’s recommended approach would essentially codify current CWIS permitting procedures for existing facilities, which are based on site-specific determinations and have been in place administratively for some time because of legal challenges to previous rules. EPA acknowledges that closed-cycle systems reduce the adverse effects of CWIS to a greater extent than other technologies, but in the proposed rule it rejected closed-cycle cooling as a uniform requirement at existing facilities. The agency based that conclusion on four factors: additional energy needed by electricity and manufacturing facilities to operate cooling equipment and adverse consequences to reliability of energy delivery (i.e., energy penalty), additional air pollutants that would be emitted because fossil-fueled facilities would need to burn more fuel as compensation for the energy penalty, land availability concerns in some locations, and limited remaining useful life of some facilities such that retrofit costs would not be justified.

Not surprisingly, stakeholder groups viewed the proposal differently. Environmental groups endorsed the parts of the rule to establish nationally uniform requirements, but criticized those allowing for site-specific determinations. Industry groups urged EPA to provide greater flexibility that would be more cost-effective. State permitting authorities were divided on modifying the rule to be more flexible. In June 2012, EPA said it is considering alternatives that reflect some recommendations of industry and utility groups, and in July, the agency said it will delay issuance of a final rule until June 27, 2013.


Date of Report: September 12, 2012
Number of Pages: 29
Order Number: R41786
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