Crimes Against Nature (18 page)

In a letter to Senator Lieberman, Inspector General Earl E. Devaney indicated his suspicion that in at least two instances Griles had violated ethics rules; Devaney also forwarded his report to the Office of Government Ethics for resolution. But that office referred the two cases to Interior Secretary Norton, who was also criticized in the report.
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Norton announced that she considered the case closed. “I’m glad that we can now put these allegations behind us,” she said.
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Griles added with finality, “I am glad this matter is behind me and we can continue to work to advance our initiatives.”
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Devaney had presciently complained in his transmittal letter to Norton that the American people might never get “a sound legal conclusion” on Griles’ activities inside and outside government as well as the widespread ethics abuses in her department.
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Griles enjoys a level of access to the White House usually reserved for cabinet officials. During his first 15 months on the job, he attended dozens of White House meetings, including audiences with President Bush and two with Karl Rove, and White House officials have invited him to at least 30 meetings.
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Bush quickly deployed Griles to help shape national energy policy. He met at least 37 times with industry officials to help craft Bush’s Clear Skies agenda, New Source Review standards, and other Clean Air Act rollbacks, even though Interior has almost no jurisdiction over air issues.
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Griles knew the terrain, having lobbied for 13 industry clients on clean air issues before becoming deputy secretary.

But nothing would earn the coal industry’s gratitude more than Griles’ efforts on behalf of mountaintop-removal mining. Since the 1970s, Griles has worked to allow this devastating practice to flourish.

Before Bush was elected, Appalachia still had a few powerful legal tools at its disposal that Griles hadn’t managed to dismantle during his Reagan-era stint. One of them was the Clean Water Act, which prohibits the discharge of waste into U.S. waterways without a permit from the EPA. These permits may only be issued if the polluter complies with rigorous standards meant to ensure that there is no decline in water quality. Congress, however, gave limited authority to the Army Corps of Engineers to issue permits allowing the placement of “fill material” in water to build docks, jetties, bulkheads, or other beneficial developments. However, since 1975 the definition of “fill material” had explicitly prohibited fills composed of waste. Nonetheless, the Corps had been permitting coal companies to dump mountaintop-removal waste into streams for years — ostensibly under this limited permitting authority — even though the agency had no legal power to do so. The dumping of mountaintop-removal debris into wilderness streams clearly is not a “beneficial development.” In 1998, when Corps official Rodney Woods was asked during a deposition in Cincinnati why the Corps had been illegally approving the disposal, he stated that his agency “just sort of oozed into that.”
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In 1998, Joe Lovett, an attorney who runs the Appalachian Center for the Economy and the Environment, and Jim Hecker, from Trial Lawyers for Public Justice, sued the Army Corps of Engineers and state regulators on behalf of local citizens and a regional Appalachian group.
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The law was absolutely clear and the case ultimately resulted in a decision in October 1999 by Chief Judge Charles Haden of the Southern District of West Virginia Federal District Court. Judge Haden declared that it was illegal to dispose of mining waste in streams. He wrote that the practice was a violation of the Clean Water Act’s water quality standards, noting that “Valley fills are waste disposal projects so enormous that, rather than the stream assimilating the waste, the waste assimilates the stream.”
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That decision was the principal reason the industry wanted its guardian angel back in government. On August 5, 2001, three days after signing his recusal letter, Griles brought a reassuring message to a gathering of the West Virginia Coal Association, an audience that included his former clients. “We will fix the federal rules very soon on water and spoil placement,” he said.
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It was a blatant reference to the dumping of waste from mountaintop removal into streams.

Then, in May 2002, on the day I flew across Appalachia, the Bush administration engaged in one of its most cynical maneuvers yet. At Griles’ urging, the EPA and the Army Corps of Engineers followed the advice of the National Mining Association and redefined the waste from mountaintop mining as fill. Unfortunately, the prohibition against using waste material as fill, though clearly representing the intent of Congress when the Clean Water Act was passed, did not appear in the act itself.

The Bush rule change created a loophole in the Clean Water Act big enough to drive a Dragline through. And it doesn’t just affect Appalachia. Other industries — hard-rock mineral mining, demolition companies, waste disposal operations — all may take advantage of this new loophole. They too may obtain Army Corps permits to bury wetlands, streams, and other waters with their wastes. This is the most significant weakening of the Clean Water Act since it was passed three decades ago.

Chief Judge Haden immediately struck down this new definition
sua sponte
— meaning on his own impulse, without prompting by either side — calling it an “obvious perversity.” But the notorious right-wing judges on the Fourth Circuit Court of Appeals upheld the White House’s rule change.

Emboldened by this victory, Griles pressed forward to eliminate the last major federal obstacles to mountaintop removal.

The 1998 lawsuit by Hecker and Lovett contained two other charges against King Coal. First they challenged a permit issued by the Army Corps to Griles’ then-client Arch Coal that allowed construction of the largest strip mine in history, despite the fact that the Corps had not performed the environmental impact statement mandated by the National Environmental Policy Act. Lovett and Hecker also charged the Corps with violating the “buffer zone” rule under the Surface Mining Reclamation Act (SMCRA), which forbids the discharge of mining waste within 100 feet of larger streams.
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Again, both the law and the government’s violations were clear as daylight.

Judge Haden, who forbade Arch Coal from constructing the mine, then went a few steps further, forbidding the Corps from issuing any more permits for mining activities in buffer zones, a ruling that would have spelled the end for large mountaintop-removal mines. The conservative Fourth Circuit reversed Judge Haden in a wacky decision that held that the buffer zone challenge should have been brought in state court. Lovett and Hecker refiled in state court in 2003 but moved forward with the EIS challenge in federal court.

Meanwhile, the EPA official responsible for Appalachia, Mike McCabe, recognizing the merit of Lovett and Hecker’s position, settled the federal case by agreeing to prepare the EIS and to require greater scrutiny for future permits. As a result of the settlement, no new mountaintop-removal mining permits were issued for approximately two years. With new mountaintop removal temporarily on hold, Lovett and his group began negotiating with the federal government. Several federal agencies — the EPA, the Office of Surface Mining, Fish and Wildlife, and the Army Corps of Engineers — started working with the state of West Virginia on this EIS in 1999. “I thought we were making some progress,” recalls Lovett. McCabe said that he did not foresee fills greater than 75 acres ever being allowed in Appalachia after the thorough study of the destruction mandated by the EIS. “The problem,” Lovett explains, “is that Bush became president and the whole thing went to hell.”

The Bush administration took over the EIS, handing it to Steven Griles to rewrite to suit King Coal.
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In April and May of 2002, Lovett, Hecker, and their clients got a look at the scientific studies that would form the EIS. They were released to them by a decent and courageous midlevel bureaucrat in the regional EPA office.

The documents contained bad news for King Coal. Even smaller fills, several studies revealed, would permanently destroy vast portions of the unique Appalachian environment.

Griles was undeterred. On October 5, 2001, barely three months after recusing himself from involvement with issues affecting his former coal-industry clients, he sent a letter to five federal agencies saying that the EIS, rather than focusing on minimizing environmental impacts, “must consider and recommend resolutions that will allow steep slope Appalachian coal mining [i.e., mountaintop removal] to proceed.” Griles continued: “We do not believe that the EIS, as currently drafted, focuses sufficiently on these goals.” He went further: “We must ensure that the EIS lays the groundwork for coordinating our respective regulatory jurisdiction in the most efficient manner,” he wrote. “At a minimum, this would require that the EIS focus on centralizing and streamlining coal mine permitting.” Griles sent his letter to James Connaughton, White House Council on Environmental Quality director, and Jeffrey Jarrett, Office of Surface Mining, as well as high-level decision makers in the OMB, the EPA, and the Army Corps of Engineers.
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Just one month after he sent the memo, coal interests contributed $150,350 in soft money to the Republican National Committee.
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Griles’ former client, Arch Coal, kicked in $15,350 that month, part of $76,894 the company has given to the Bush campaign and the RNC since 1999.
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Griles proceeded to rewrite the EIS to weaken safeguards against mountaintop-removal mining. Eight million dollars’ worth of compelling scientific and technical studies running over 5,000 pages were moved into appendixes. The main body of the EIS became a discussion about how to make it easier for the coal industry to get permits.

“There’s a surreal kind of disconnect between the science of the EIS and the recommendations that came from it,” Lovett says in his dry Appalachian twang. “The purpose of the EIS was to study the environmental and social impacts of mountaintop removal and find ways to limit the destruction. Griles ordered them instead to use the process to make it easier for the coal industry to get permits. It’s already easy enough for the coal industry to get permits.”

Meanwhile, Lovett’s case on the buffer zone issue was now close to a decision in the state administrative appeals process, and the coal companies were frantic to derail it. Buffer strips are the last remaining impediment to creating massive fills. Griles decided to use the EIS as a vehicle for jettisoning the buffer zone rule. He inserted in the EIS a proposal to repeal the stream buffer rule, a change that will legalize the obliteration of Appalachia’s streams.

Over 80,000 people filed comments specifically opposing the devastating buffer zone rollback, and 12 GOP House members wrote Bush urging him not to make the “ill advised and dangerous” rule change.
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On January 6, 2004, the comment period on Griles’ draft EIS for mountaintop-removal mining closed. The next day, before all the comments could possibly have been read, the administration published its proposal to change the stream buffer rule. On January 7 the Federal Register contained a notice proposing to abolish the rule. The proposal is likely to become law before the November election. Joan Mulhern of Earth Justice, an environmental group that helped generate tens of thousands of comments, said, “They had obviously already sent the rule change to the Federal Register before the comment period had even closed, because it takes a couple of days for proposed rules to get printed. Clearly the Bush administration doesn’t care what the public thinks.”

“When it comes to the coal industry,” Cindy Rank of the West Virginia Highland Conservancy told me in frustration, “they don’t even need to lobby anymore. With Griles in there, it just happens.”

The pillage of Appalachia by the coal industry is being made possible by officials who view public service as an opportunity for wholesale plunder. It is just one tragic legacy of this White House. “I believe that the coal industry has found the best friend they’ve ever had in the Bush administration,” Judy Bonds told me. “Definitely the Bush administration and the coal industry have teamed up to wipe Appalachia off the map. This is Appalachia’s last stand. When the mountains go, so goes our culture and our people, and it’ll be the Bush administration that pushes the stake through our heart.”

T
he handouts to King Coal were bad enough. But we knew things could still get worse, much worse: If Dick Cheney’s energy bill came to pass, the giant subsidies and rollbacks doled out ad hoc to the coal industry would be multiplied several times over, with catastrophic impacts on America’s economy, environment, and values.

The collective horror at Dick Cheney’s plan galvanized the environmental movement. National groups stepped up their efforts to defend the United States against Bush’s overall agenda, while a core faction formed the Energy Strategy Group, specifically to derail Cheney’s energy package. I worked alongside the leaders of this team, NRDC legislative director Karen Wayland and her predecessor, Alyssondra Campaigne. The group included energy specialists from the NRDC, the Sierra Club, and the U.S. Public Interest Research Group. We ferreted out donors, conducted polling, mobilized members to contact their public officials, and did our best to alert the public to Cheney’s plan to loot the country’s treasures. We deployed the NRDC’s influential “network of aces” — business leaders, actors, and former political leaders who could call senators directly. More than 500,000 activists wrote letters and sent e-mails to their elected representatives and the White House. The NRDC sent me on a media blitz, writing editorials and articles, doing back-to-back interviews with television, radio, and news outlets across the country. The spirit of cooperation made this one of the best collaborative efforts in the history of the environmental movement.