A midnight lease on the mesa

High Country News has reported on the Bush administration’s "midnight deregulations," the host of hurried laws issued in the waning days of the administration, which – whether aimed at fisheries, air pollution, or oil shale – generally promise to benefit big business while undercutting environmental protections. But now that Obama’s in the oval office, some of those last minute rules might be overturned, and one such reversal could begin today.

This morning, a coalition of Navajo and Hopi groups and environmental activists appealed a permit revision issued to Peabody Energy on December 22 by the Office of Surface Mining. The coalition argues that the permitting process violated federal mining and environmental statutes. Among the concerns: complaints that the environmental review was inadequate and included little mention of coal mining's impact on climate change; and contentions that public participation was squelched by the fast pace of the final approval process.

"This is a huge mine," said the Sierra Club's Andy Bessler. "The communities that deal with these mines need time to deal with the complexity."

The controversial permit rearranges Peabody’s coal rights in the Black Mesa Complex – a massive coal operation that encompasses two separate strip mines and straddles Navajo and Hopi land. Under the recently issued life-of-mine permit, 5,950 acres of coal reserves formerly included in the permit area of one mine (which is currently closed and showing no sign of reopening) have been transferred into the permit area of the other mine on the Mesa (which is currently active and promises to remain so for another 18 years).

The OSM’s permit decision came on the heels of a long and convoluted application process. Back in 2004, Peabody Energy applied for a new permit for its Black Mesa Mine, the more southerly mine of the complex. By the end of 2006 a draft EIS had been drawn up and OSM began holding public meetings and taking comments on the document. In the EIS Peabody’s preferred course of action was dubbed alternative A, and that option, which was much more complex than the other two alternatives presented in the EIS, drew the bulk of the scrutiny and discussion.

However, by early 2007 water concerns and fluctuating energy prices had caused Peabody to back away from its application. The permitting process came to an abrupt halt. It remained that way for a year.

"We thought that (the application) was pretty much shelved and done," said Enei Begaye, co-director of the Black Mesa Water Coalition, a group participating in the appeal.

But this May, OSM released a surprising newsletter. Peabody had changed its permit application, and was now pushing for a modified form of alternative B. Peabody's amended application was officially filed in July, the final EIS was released in November and a month later, OSM approved the revised life-of-mine permit. Over those months, OSM offered a standard 45-day public comment period. But those who filed the appeal say the comment period should have been extended, and another round of public meetings should have been offered.

And there were other complaints, such as the one that came from U.S. Rep Raul Grijalva (D-Ariz) in October, when he wrote a letter to then Interior Secretary Dirk Kempthorne urging the permitting process to be suspended. Or the comments from the EPA, in which that agency questioned the EIS's failure to address climate concerns, and asked why Peabody wants the permit in the first place. The amended permit transfers thousands of acres of coal into the permit area of the Kayenta Mine, but Peabody hasn't been required to say what it will do with that coal.