On a tree-shaded corner of the town park in Paonia, Colorado, a life-sized statue of a miner stands, his pick gripped in both hands and his gaze turned toward Coal Mountain, a small peak in the West Elk Range of the Rocky Mountains. The statue honors the 68 men who have died in nearby mines since 1906, and acknowledges the historic importance of coal to the community (which is also HCN's hometown). These days, though, it also stands as a monument to an energy source whose future is in flux.
About a third of American power plants run on coal, and more than half of it comes from Western mines. But even though it remains the country's greatest single source of fuel for electricity, its prominence is slipping; as recently as 2007, for example, coal-fired plants produced half the nation's power. Much of the drop is due to economics, as more plants convert from coal to cheaper natural gas. But more than economics are involved: The battle over coal is increasingly moving into law and public policy.
In June, a federal judge in Colorado stopped a lease expansion for the West Elk Mine, one of three mines in the North Fork Valley, above Paonia. The judge said that the agencies involved had failed to adequately account for climate impacts, either from the mine's operations or from emissions that could come from burning the new coal. The decision came just after the Environmental Protection Agency issued a new set of regulations for power plant emissions, and though it may be appealed, it could set new precedents in the way mines and agencies calculate coal's cost to the climate. It also came as the White House continues to push a climate change agenda through agencies like the EPA and the Bureau of Land Management.
Still, when U.S. District Court Judge R. Brooke Jackson – a Western judge appointed by President Obama – ruled to enjoin expansion of the West Elk Mine, it came as something of a shock.
"This is the first time, that I'm aware of, that conservation organizations like ours have been able to invalidate a BLM approval for a coal mine because an agency failed to adequately consider climate change impacts," says Nathaniel Shoaff, staff attorney for the Sierra Club, which joined other groups in suing federal agencies for approval of the lease expansion. "And that the court did so on these grounds is going to come up in lots of other cases."
Jackson ruled that the Forest Service and the BLM had failed to look hard enough at the impacts of the lease expansion, as required by the 1969 National Environmental Policy Act. The mine, owned by Arch Coal – one of the nation's biggest coal-mining companies – had sought to extend its underground mining operations into the Gunnison National Forest, an expanse of aspen, scrub oak and beaver ponds popular with big game hunters. The expansion would have required numerous wells to vent methane pockets trapped amid the coal.
The agencies thoroughly touted the economic gains of the expansion, "down to the job and the nearest $100,000," without fully examining the costs to the area and the climate, Jackson said. That includes the methane, a greenhouse gas many times more potent than carbon dioxide that's released during mining operations, as well as the CO2 released from the coal once it is removed from the ground and burned in a power plant.
Jackson also ruled that the BLM failed to account for the "social cost of carbon," a federally established measurement of how greenhouse gas emissions might affect global warming. "In effect the agency prepared half of a cost-benefit analysis, incorrectly claimed that it was impossible to quantify the costs, and then relied on the anticipated benefits to approve the project," Jackson wrote in his decision.
Jackson also took issue with something called the Colorado Roadless Rule. That 2012 rule, a compromise between the state's mining industries and environmentalists, was Colorado's response to former President Clinton's Roadless Area Conservation Rule, which put 58 million acres of national forest off limits to road building, energy development, logging and mining. Clinton's rule would have prohibited roads in coal-seamed areas of the North Fork, something the state's version allowed. In his decision, Jackson agreed with the plaintiffs, who claimed the Colorado Roadless Rule had not sufficiently accounted for potential costs to the climate and so should not be used in arguments for a coal-mine lease expansion.
The Colorado Roadless Rule effectively opens up 350 million tons of coal for extraction, Shoaff says. That's a huge amount of coal and a huge amount of carbon. In the past, the BLM and Forest Service have argued that if that coal is not mined in a particular location, it will be mined elsewhere, canceling out the costs to the environment.
"That is a totally specious argument," Shoaff says. "And this court got rid of it in about one page."
The decision creates potential precedents that could push agencies to better account for costs to the climate in their leasing agreements, Shoaff says, including the market impact of pulling so much coal out of the ground. Models can predict what will happen to the price of coal if that amount of coal is not mined. Generally, it will increase, potentially making other, less-polluting energies more appealing, and thereby reducing carbon emissions.
The West Elk Mine decision was not the only shift in the discussion of coal's future this spring. The White House is moving forward with an aggressive climate change agenda, and that, too, is affecting coal. The most visible of these initiatives is the EPA's Clean Power Plan, a rule that aims to reduce the coal industry's U.S. emissions by 30 percent below its 2005 levels by 2030. The rule has been discussed by policymakers in Washington, D.C., and via public comment meetings in three other cities, including Denver. Many high-profile environmental groups like the Sierra Club and the Environmental Defense Fund support the rule, but it also has its detractors, particularly from the coal industry and states whose economies rely on it.
In hearings at the EPA's Region 8 office in Denver last month, Colorado's Moffat County Commissioner John Kinkaid likened the rule to an "environmental extremist war."
"This isn't some abstract bureaucratic exercise to the people of northwest Colorado," he said. "To us, this is personal." A coal-fired plant and two attendant coal mines are the top three taxpayers for the county, he said in an interview later. "We feel that we're being told that the science is settled, so just be quiet, and, you know, live with the regulations," he said.
Meanwhile, the BLM is quietly moving toward creating regulations for dealing with methane from underground coal mining. Coal and methane are often found together, and it was the need for detection of methane, deadly for miners, that brought about the legendary canaries in early mines.
These days, methane is vented through wells drilled from the surface before mining begins, for safety purposes. But not all of that methane is captured, re-used or burned off, creating another kind of emissions problem. Methane is a major greenhouse gas that is 20 times more powerful than CO2 over a 100-year period. U.S. coal mines account for 10 percent of all human-caused methane emissions, according to the BLM. Adhering to the White House climate change initiative, the BLM is now requesting comments on a program to "capture, use, or destroy waste mine methane" in the mining of coal and other lease minerals.
All of this is to say that coal is being viewed differently, in the courts and by the agencies that regulate it. Coal mining is still going strong, though, with much of the domestic losses in the industry offset by exports to meet foreign demand.
Colorado's West Elk Mine decision is likely to be appealed, though details remain uncertain. A BLM spokeswoman in nearby Montrose, Colorado, declined to comment on the case. The overall effect on the industry, or even on Arch Coal, remains an open question, too. Company spokeswoman Kim Link says the ruling would not change operations immediately but it would complicate long-term planning.
That kind of uncertainty is the problem with decisions made in the absence of a coherent national energy policy, says Robert Godby, director of the University of Wyoming's Center for Energy Economics & Public Policy. No such policy means a "hodgepodge of rulings" like the West Elk Mine decision.
"The screws are getting turned on greenhouse gases, and anybody involved in that industry knows that," he says. "And they're hoping for some clarity so they can move forward."
Stuart Sanderson, president of the Colorado Mining Association, says such clarity is lacking.
"The administration was not capable of producing a climate bill that could get through the Congress, even when the Democrats had a filibuster-proof majority in the U.S. Senate," he says. "Failure to work with industries and try to achieve consensus has created a national (regulatory) vacuum."
Still, the West Elk decision makes clear that once arguments for burning coal are weighed against its costs to the environment, coal might start to lose.
"Slowly but surely those decisions are adding up," Godby says. "I don't know if we've hit the tipping point, but we're closer to it."