Enviro groups target coal mine permitting in North Dakota

The Dakota Resource Council filed two lawsuits May 30 at the U.S. District Court for the District of North Dakota, one of which accuses the state Public Service Commission of improperly issuing coal mining approvals, and the other against the U.S. Interior Department for ignoring alleged campaign contributions made by coal industry interests to PSC members.

The suit against the commission is a citizens’ suit under the federal Surface Mining Control and Reclamation Act of 1977 (SMCRA). “Plaintiffs seek an order declaring Defendant in violation of SMCRA, compelling Defendant to refrain from giving further effect to certain policy memoranda unless and until Defendant obtains lawful approval of each memorandum from the Director of the Office of Surface Mining Reclamation and Enforcement (‘OSM’) of the United States Department of the Interior; compelling Defendant to comply with [federal regulations] with respect to each future change in laws that make up the North Dakota state regulatory program for implementing SMCRA, and awarding costs and fees to Plaintiff from Defendant,” said the lawsuit.

Following initial federal approval of North Dakota’s state regulatory program in December 1980, the PSC has issued numerous surface mining “policy memoranda,” some updated multiple times, governing various surface mining activities, said the lawsuit.

“Based on information and belief after reasonable inquiry, NDPSC has not submitted any of these memoranda to OSM for its evaluation and approval, nor has OSM lawfully approved any of these memoranda as an independent agency action, pursuant to the procedures that SMCRA requires,” the lawsuit said. “Some of the memoranda, including but not limited to memos 5, 6, 15, 18 and 20, contain substantive inconsistencies with the federal environmental protection performance standards that must be adopted and implemented under state regulatory programs for surface coal mining and reclamation operations.”

Second lawsuit focuses on political contributions

Most state PSCs, by the way, don’t regulate coal mining, but North Dakota’s is an exception. That is a relevant fact for the second lawsuit, since the North Dakota PSC commissioners are elected by the public, where top officials at mine permitting agencies in other states are civil servants and political appointees. The North Dakota commission is made up of three commissioners who are elected on a statewide basis to staggered six-year terms.

The second lawsuit, filed by the Dakota Resource Council and a local chapter of the Sierra Club against Interior Secretary Ken Salazar under SMCRA, said that various PSC commissioners have taken campaign contributions from coal interests.

For example, in May 2006, according to campaign finance disclosures made by PSC Commissioner Tony Clark, he accepted $1,000 from COALPAC, a North Dakota political action committee whose contributors included several coal executives, including Robert Benson, President and CEO, North American Coal Corp. (NACCO).

Another example cited in the lawsuit is that in July 2008, according to campaign finance disclosures made by PSC Commissioner Brian Kalk, he accepted $500 from North American Coal PAC, NACCO’s political action committee. Examples are also cited of coal industry-related contributions made to Commissioner Kevin Cramer.

“On June 16, 2011, Plaintiffs and others wrote to NDPSC to notify the Commission of the alleged SMCRA conflict of interest violations and to request that Commissioners Cramer and Kalk remove themselves from deliberations on the South Heart mine permit application currently pending before NDPSC,” said about a new lignite coal mining project. “Neither NDPSC nor any of the commissioners made any formal response to this request.”

The lawsuit added: “On August 4, 2011, Plaintiffs and others wrote to Al Klein, Western Regional Director of OSM Western Region, to notify him of the alleged violations and to request an investigation into the legality of the Commissioners’ actions. In December 2011, OSM Deputy Ethics Counsel notified Plaintiffs’ attorney by telephone that OSM would not pursue the matter because the allegations involved making a legal interpretation of SMCRA that Ethics Counsel was not authorized to make.”

The Interior Secretary needs to act to require state program implementation consistent with SMCRA conflict of interest rules, the lawsuit said. This need to enforce the rules is particularly acute related to the in-permitting South Heart mining project, the lawsuit added. “Approval of the mine and coal facilities at South Heart will affect Plaintiffs’ interests immediately and directly by damaging their peaceful enjoyment of their homes, the viability of their farming, ranching and outfitting livelihoods, the success of the tourism industry centered around Theodore Roosevelt National Park, the quality of the pristine nature experience in and around Theodore Roosevelt National Park, and Plaintiffs’ personal safety on local roads affected by mine-related blasting, digging, and hauling.”

The plaintiffs want the federal court to order Salazar to immediately withdraw approval of North Dakota’s surface mining regulatory program and substitute federal enforcement and implementation until such time as North Dakota’s program can be fixed.

Report: Cramer says lawsuits are politically motivated

In a May 31 story, the Bismarck Tribune quoted Commissioner Cramer responding to the lawsuits. Cramer said the commission has always informed federal mining officials of coal policy changes, and that the Dakota Resource Council gets copies of them. The commission has not yet reviewed the South Heart coal mining application, Cramer said.

“It is unfortunate two organizations whose revenue comes from donor contributions would abuse their tax-exempt status with political attacks,” Cramer said in an emailed statement quoted by the Tribune. “The DRC and Sierra Club have no facts and no laws on their side, yet they attempt to circumvent justice with frivolous lawsuits aimed at embarrassing public officials guilty of nothing.”

The commission itself had issued no public statement on the lawsuit as of May 31.

Notable is that the lawsuit doesn’t claim the campaign contributions are illegal under state law, just that they are ostensibly not allowed under SMCRA. A pertinent SMCRA passage cited in the lawsuit is: “(e)xcept as provided in paragraph (b) of this section, employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or any other thing of monetary value, from a coal company which: (1) Conducts or is seeking to conduct, operations or activities that are regulated by the State Regulatory Authority; or (2) Has interests that may be substantially affected by the performance or non-performance of the employee’s official duty.”

Incidentally, the Tribune reported that Clark plans to resign his commission seat soon to accept an appointment to the Federal Energy Regulatory Commission. The U.S. Senate confirmed Clark on May 24 for the FERC seat. Kalk and Cramer are opposing each other for the Republican nomination to run for the U.S. House this fall, the newspaper added. The commission website said that Cramer’s term expires in 2016, Clark’s term expires in 2012 and Kalk’s term expires in 2014.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.