Peabody trying to shift coal clean-up costs onto taxpayers, ELPC’s Learner explains to NPR’s Marketplace

Just about every big coal mining company in America is in bankruptcy, or emerging from it. That includes the world’s largest private sector coal firm: Peabody Energy.

Peabody won court approval to set aside just a small amount of money for environmental cleanup – a mere 15 cents on the dollar. That leaves the states in which it operates at risk for the rest.

The whole question here is, if coal companies wobble and fall down for good, who pays for the cleanup? The process of removing water pollution, planting trees and shrubs and returning the topsoil is expensive and time-consuming.

In Peabody’s case, the court and three key mining states agreed to let the company put up just a fraction of the cleanup money that would be required.

“They’re trying to shift the costs from the coal mining companies back to the states, and basically onto taxpayers,” Howard Learner, executive director of the Environmental Law and Policy Center, said. “And unfortunately, for example, the state of Indiana seems to have agreed to take 15 to 17 cents on the dollar.”

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ELPC Statement On Opening Of New Self-Bonding Rulemaking

August 16, 2016

David Jakubiak

Federal Office of Surface Mining and Reclamation Enforcement Opens New Self-Bonding Rulemaking
New Rules Must Ensure Coal Mine Clean-Up Is Done Well and Costs Not Shifted To The Public
Executive Director, Environmental Law & Policy Center

Howard Learner, Executive Director of the Environmental Law & Policy Center, said in response to the Office of Surface Mining and Reclamation Enforcement’s (OSMRE) opening of a federal rulemaking addressing the problems of coal mining companies’ self-bonding of mine reclamation costs:

“OSMRE recognizes that the self-bonding standards should be strengthened to deal with today’s energy market reality of multiple coal mine company bankruptcies and declining demand for coal. We commend OSMRE for moving forward with a new rulemaking process to better protect taxpayers and ensure that mine reclamation and environmental clean ups are paid for by the companies that are responsible for the costs.

“ELPC will work to ensure that improved self-bonding standards prevent coal mine clean-up costs from being shifted onto taxpayers and that the coal mining companies fulfill their mine reclamation responsibilities and do that well.”

Progress IL: Enviros rally & testify on clean energy justice issues in Chicago

Environmentalists from across the country were in Chicago Wednesday to testify before the U.S. Environmental Protection Agency about its proposed Clean Energy Incentive Program (CEIP).

CEIP is an optional component of the Clean Power Plan, which seeks to slash carbon emissions from existing U.S. power plants. The voluntary incentive program is meant to jump-start action to curb carbon pollution and help states comply with the Clean Power Plan.

CEIP seeks to reward early investment in energy efficiency and solar projects in low-income communities as well as zero-emitting renewable energy projects — including wind, solar, geothermal and hydropower — in all communities.

Participating states could use the emission allowances or emission rate credits distributed through the program to comply with the Clean Power Plan when it takes effect in 2022. The EPA, which released its updated CEIP plan in June, is proposing that the matching pool of allowances or emission rate credits be split evenly between low-income community projects and renewable energy projects.

Emma Lockridge, a leader with Michigan United and the People’s Action Institute, was among dozens of speakers from across the country who testified this morning in support of making CEIP mandatory and more comprehensive.

Lockridge and many other hearing attendees described themselves as living in frontline, environmental justice communities.

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Learner says no deal from Peabody in Illinois could signal better reclamation deal

Peabody Energy, the largest coal producer in the U.S., reached a deal this week with several states on plans to cover the costs of mine cleanups. Illinois is not among them and environmentalists said that could be a good sign.

The company is filing for bankruptcy and has been allowed to self-bond – essentially a promise to pay for coal site cleanup without actually setting aside the cash. Peabody operates several coal mines in Illinois and according to the state’s attorney general, the energy company could be on the hook for $92 million to reclaim the sites if they’re shut down.

That money should not have to come from Illinois taxpayers, said Howard Learner with the Environmental Law and Policy Center.

“The state of Illinois has not filed a stipulation with Peabody,” Lerner said. “And we’re pleased that Governor Rauner and the Illinois Attorney General are looking harder at this one, and reassessing what’s the fair balance here in light of Peabody’s legal responsibilities.”

Learner said that the deal Peabody reached with Indiana could force the state’s taxpayers to foot about 80 percent of the bill to clean up the company’s coal sites. So far, Illinois has not made a deal with Peabody.

In July, a federal bankruptcy judge allowed groups, including the Environmental Law and Policy Center, to weigh in on the court proceedings. Learner called it a breakthrough decision that could help keep Peabody accountable.

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Ecosystem Marketplace: ELPC’s Brad Klein Weighs in on Water Quality Trading Programs

Water Quality Trading: What Works? What Doesn’t? And Why Don’t We Know This Already?

By Kelli Barrett

July 22, 2016

Water utilities and NGOs around the world are using market-based mechanisms to clean regional water bodies and restore surrounding watersheds, but critics say the programs are unproven. Proponents counter: yes, they are, and the data exists to prove it!

For years now, North American cities like Denver and New York have been diverting water fees into forest conservation, while Kenyan flower-growers have been voluntarily paying upland farmers to develop terraces that slow runoff. Just this week, legislators in the Peruvian Capital of Lima authorized a program that will divert some of the city’s water fees into the restoration of ancient, pre-Incan canals high in the Andes to capture floodwater for the dry season. In addition to these “investments in watershed services” (IWS) programs, water authorities in the United States, New Zeeland, and Australia are experimenting with something called “water quality trading” (WQT), which aims to keep levels of fertilizer at scientifically acceptable levels by helping farmers implement conservation practices that reduce their agricultural runoff.

Each program is uniquely its own, but they all hinge on the premise that market-based mechanisms deliver better results and more flexibility by focusing on quantifiable, verifiable outcomes – either in terms of water quality or regularity of supply – rather than the rigid edicts of “command-and-control” regulation.

Last autumn, an organization called Food and Water Watch (FWW) challenged that assumption, at least as far as WQT is concerned, in a paper that re-labeled WQT as “pollution trading” and charged that it undermines the Clean Water Act (CWA) and puts US waterways at great risk – a contention that was promptly dismissed by WQT proponents like Brent Fewell and Bobby Cochran.

Fewell, a one-time senior official at the US Environmental Protection Agency (EPA) and founder of the law firm Earth and Water Group, penned a piece entitled “Food & Water Lies – FWW Stands in the Way of Environmental Protection” which derided the organization as being ideologically anti-market and anti-public private partnership, while Cochran, the Executive Director of the Oregon-based nonprofit Willamette Partnership, was a bit more forgiving.

“FWW did not do an independent assessment on water quality trading,” said Cochran, whose organization is active in the WQT space and often acts as an advocate for trading.

However, Cochran adds that proponents of trading aren’t producing objective content either.

And while the pro and con camps continue to argue, reams of hard data from dozens of pilot projects are sitting around just begging for a disinterested, scientific evaluation. Cochran, among other practitioners, suggest a third-party, independent review of this data to settle the debate over whether WQT is effective.


Judge rules that ELPC is in position to assert that Peabody put up necessary funds for mine reclamation and cleanup

From Midwest Energy News:

Environmental groups won a partial victory last week in their campaign to make sure Peabody Energy cleans up its coal mines, a growing concern as the company is going through Chapter 11 bankruptcy proceedings.

A federal bankruptcy judge found that the Environmental Law & Policy Center and the Western Office of Resource Councils can proceed in petitioning the federal Office of Surface Mining Reclamation and Enforcement (OSMRE) regarding Peabody’s use of “self-bonding” for eventual clean-up of its coal mines.

When a company is in bankruptcy, there is an “automatic stay” imposed on citizens pushing for enforcement of environmental laws, including the federal law governing coal mine reclamation. The groups had asked the bankruptcy court to be exempted from that stay on the self-bonding issue.

Peabody had strongly objected, but the judge ruled in the groups’ favor, deciding they can continue sending information to the federal enforcement office and demanding  regulators take action to limit Peabody’s self-bonding.

The groups have been arguing that Peabody should have to put up real capital ahead of time or invest in an insurance policy or surety bonds to clean up mines, rather than be allowed to “self-bond,” or essentially promise that it will have enough money when the time comes.

As ELPC executive director Howard Learner sees it, bankruptcy judge Barry Schermer’s July 20 decision signals that the feds can enforce reclamation requirements on Peabody even as the company reorganizes in bankruptcy proceedings. And if federal regulators do not take action the environmental groups find sufficient, the ruling protects their right to sue the agency, Learner said.

“The question will be, where do Peabody’s mine reclamation and environmental cleanup responsibilities fall within the competing demands of creditors and vendors and Peabody’s plans for future,” as hashed out in bankruptcy proceedings, Learner said.

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Greenwire: Federal Judge Allows ELPC to Challenge Peabody Cleanup Bonds

By Dylan Brown, E&E Reporter

A federal judge yesterday cleared the way for environmentalists to challenge a bankrupt coal company’s promises to clean up its mines — objections industry advocates condemn as counterproductive meddling.

Judge Barry Schermer of the U.S. Bankruptcy Court for the Eastern District of Missouri decided yesterday to lift a hold on two conservation groups’ challenges to Peabody Energy Corp.’s self-bonding.

The Surface Mining Control and Reclamation Act gives states, as the law’s primary regulators, the option to accept corporate pledges instead of third-party bonds or sureties to cover mine cleanup costs should the company go under.

But coal’s downturn and mining company bankruptcies have sparked fierce criticism from environmentalists and Democrats pushing to ban self-bonding over concerns that taxpayers will ultimately pay for reclamation (Greenwire, June 16).

The Environmental Law & Policy Center and the Western Organization of Resource Councils planned to formally challenge Peabody’s self-bonding obligations in Illinois, Indiana and Wyoming until the world’s largest public-sector coal company filed for bankruptcy in April (Greenwire, March 8).

Bankruptcy automatically put a hold on any attempt to force Peabody to replace self-bonds. The company holds roughly a third of the nation’s $3.7 billion in total self-bonding — including $92 million in Illinois, $163 million in Indiana and nearly $800 million in Wyoming.

Schermer yesterday said citizens could file their grievances with the federal Office of Surface Mining Reclamation and Enforcement.

He wrote that critics “may advocate their position regarding the Debtor’s and its affiliates timely satisfying self-bonding requirements of jurisdictions in Illinois, Indiana, and Wyoming.”

Schermer, however, said groups could not sue or take any action to interfere with Peabody’s mine permits, renewals or modifications. The company is going through a court-supervised restructuring process.

“ELPC will continue to work with our partners to ensure that Peabody Energy’s and other coal mine companies’ bonding practices are in the public’s interest and that taxpayers are not saddled with the costs of mine reclamation and clean-up responsibilities,” Environmental Law & Policy Center Executive Director Howard Learner said in a statement.

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Breaking News: Bankruptcy Judge Rules Self-Bonding Challenge Can Move Forward

FOR IMMEDIATE RELEASE                                                     

July 20, 2016


David Jakubiak

Federal Bankruptcy Court Allows Environmental Groups to Move Forward On Peabody’s Self-Bonding of Coal Mine Reclamation


Executive Director, Environmental Law & Policy Center

St. Louis – Howard Learner, Executive Director of the Environmental Law & Policy Center, said in response to Federal Bankruptcy Judge Barry Schermer’s ruling today allowing efforts to move forward that could help prevent any effort to shift coal mine clean-up costs on to the public as part of any bankruptcy restructuring:

“The Federal Bankruptcy Court recognized that the Environmental Law & Policy Center and Western Organization of Resource Councils are ‘parties in interest’ and can proceed to comment on Peabody Energy’s obligation to fully perform mine reclamation and environmental cleanups at its coal mines in Illinois, Indiana, New Mexico and Wyoming.”

“ELPC will continue to work with our partners to ensure that Peabody Energy’s and other coal mine companies’ bonding practices are in the public’s interest and that taxpayers are not saddled with the costs of mine reclamation and clean-up responsibilities.”


Chicago Tribune: ELPC’s Learner Asserts Houbolt Road Bridge Project Affirms Need to Kill Proposed Illiana Tollway

Environmentalists see Houbolt Bridge as Alternative to Illiana Toll Road
By Susan DeMar Lafferty

News of the proposed new Houbolt Road Bridge from Interstate 80 into the CenterPoint Intermodal Center in Joliet and Elwood was viewed as a positive step toward improving safety and relieving the truck traffic that has clogged local roads. However, some feel it should also serve as a signal that the shelved Illiana toll road project is no longer needed.

Environmental groups said the bridge — expected to be open by 2019 — is a key piece in improving the local transportation system, and a cost-effective alternative to the 47-mile Illiana toll road, that was to connect Interstate 55 in Wilmington to Interstate 65 near Lowell, Ind.

The Environmental Law and Policy Center, Sierra Club and Openlands, who have fought against the Illiana toll road in state and federal courts, claim it is a “financial boondoggle,” that would have “disastrous impacts” on Midewin National Tallgrass Prairie, Abraham Lincoln National Cemetery — both located along Route 53 — and other natural open spaces in that area, such as the Des Plaines River Conservation Area.

In a July 11 press conference, Gov. Bruce Rauner said the CenterPoint Intermodal Center in Joliet and Elwood, would pay $170 million to construct the new bridge and the state would pay $21 million to widen Houbolt to four lanes and improve the interchange at I-80 and Houbolt — money that Rauner said is in the budget.

Officials hope it will offer relief to the heavy truck traffic that has choked Route 53, interfered with funeral processions at the national cemetery, caused traffic accidents and prompted the Village of Elwood to launch a web-based public safety campaign,

The bridge project makes it “all the more clear” that the Illiana should be brought to its “well-deserved end,” said Howard Learner, executive director of the Environmental Law and Policy Center. “I hope Rauner and IDOT (Illinois Department of Transportation) will bring it to an end once and for all.”


ELPC Statement on Opening of Coal Mine Self-Bonding Reform Comment Period

May 19, 2016

David Jakubiak

Environmental Law & Policy Center Statement On
Federal Office Of Surface Mining Opening Review
Of Coal Mine Self-Bonding Problems

Executive Director, Environmental Law & Policy Center

“We commend the federal Office of Surface Mining Reclamation and Enforcement for moving to look at reforms to address the problems created by coal mine companies self-bonding. OSM’s action is particularly timely because of the recent coal mine bankruptcy filings caused by poor financial decisions from executives at Peabody and other large companies.

“Coal mining companies are responsible under federal and state law to pay for mine reclamation and environmental cleanup. Taxpayers in Illinois and Indiana should not be forced to pay for Peabody’s – and the other coal companies – mine reclamation responsibilities, when misguided business decisions resulted in those bankruptcies.

“The Environmental Law & Policy Center plans on submitting comments to the federal Office of Surface Mining Reclamation and Enforcement. Our goal is to ensure coal companies live up to responsibilities for mine reclamation costs and that communities are not saddled with cleanup costs from bankruptcies.”


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