This Administration has shown it is determined to improve mining practices and we will do so within the context of the court’s ruling which we are reviewing.

Not only does this say nothing, but administration officials will have a tough time convincing folks that they’re really serious about improving mining practices in the wake of their recent decision to approve an enormous new West Virginia mountaintop removal mine — an operation designed to fill eight Appalachian valleys. That is, unless they’re going by the Bush administration definition of improvement.

The ruling is a victory for Appalachian mountaintop removal operations, where the peaks of mountains are literally lopped off with dynamite and the rock and soil pushed into adjacent valleys, many of which contain small streams that represent the headwaters of larger bodies of water below.

A 1983 law prevents mining — or disposing of mine debris — within 100 feet of streams if the activity is shown to harm water quality. But in December, the Bush White House finalized an industry-friendly rule that effectively scrapped the so-called “stream buffer zone rule.”

Calling the move “legally defective,” the Obama White House in April asked a federal judge to overturn the Bush rule change. But today, U.S. District Judge Henry H. Kennedy, Jr., declined to do so, arguing that a change in regulation requires public input.

The Interior Department says it’s working on a statement about its next step.

Meanwhile, the Sierra Club has already issued one of its own, calling on the White House to take even bolder steps to curb mountaintop removal.

With the administration currently considering more than 80 permit applications for new mountaintop removal coal mining, it will take policy changes at the Army Corps of Engineers, Department of Interior and Environmental Protection Agency, along with tough enforcement, to end the destruction completely and protect Appalachian communities.

There’s good reason for the environmentalists’ concerns. Despite vows to protect Appalachia’s waterways, the Environmental Protection Agency recently approved yet another mountaintop removal operation in southwest West Virginia — a project that will fill eight valleys with mining waste. The U.S. Army Corps of Engineers gave its final approval for CONSOL Energy Inc.’s Peg Fork Surface Mine on Friday. The move comes just a few months after the EPA approved 42 pending surface-mine permits in the Appalachian states.

Despite promises to install more transparency into its permit approval process, the EPA did not announce its decision to OK the Peg Fork mine.

Interior Secretary Ken Salazar today issued a notice of withdrawal of nearly 1 million acres of BLM and U.S. Forest Service land around the Grand Canyon from new mining claims for the next two years to allow for more study and analysis.

The move drew the praise of conservation groups such as the Pew Environment Group, which has been hammering on the antiquated 1872 mining law and the pressing need for reform in light of thousands of new mining claims for minerals such as uranium, copper and gold in and around some of the nation’s most treasured national parks.

From an Interior Department statement:

Under the Bush rule, coal mine operators are able to dispose of excess mountaintop spoil in perennial and intermittent streams and within 100 feet of those streams whenever alternative options are deemed “not reasonably possible.” Disposal into streambeds is permissible when alternatives are considered “unreasonable,” which occurs under the Bush rule whenever the cost of pursuing an alternative “is substantially greater” than normal costs.

The Bush rule replaced a rule that had been on the books since the Reagan era rule of 1983. The Reagan era rule provides greater protection for communities and habitat by allowing the dumping of overburden within 100 feet of a perennial or intermittent stream only upon finding that such activities “will not adversely affect the water quantity or quality or other environmental resources of the stream.

Ken Salazar, who heads the Interior Department, is directing  the Justice Department to ask a federal judge to vacate the rule because he says it’s “legally defective.”

“In its last weeks in office, the Bush Administration pushed through a rule that allows coal mine operators to dump mountaintop fill into streambeds if it’s found to be the cheapest and most convenient disposal option,” Salazar said in a statement. “We must responsibly develop our coal supplies to help us achieve energy independence, but we cannot do so without appropriately assessing the impact such development might have on local communities and natural habitat and the species it supports.”

Yet no one is under the delusion that the change will end the practice of mountaintop mining, in which companies blow apart the tops of mountains to reach the coal seams within, often pushing the soil, rock and debris into adjacent stream valleys. Mary Anne Hitt, deputy director of the Sierra Club’s Beyond Coal Campaign, issued a statement Monday applauding the administration’s move, but warning that much remains to be done to protect the ecosystems and communities near mining operations.

“Restoring the previous stream buffer zone regulation is one component in the fight to end mountaintop removal coal mining,” Hitt said. “But with the explosives and bulldozers standing by, it will take tough enforcement and more rule changes and legislation to end mountaintop removal coal mining completely.”

Earthjustice, an environmental group that’s sued to stop the practice, accused the administration of undermining the legal process, The Associated Press reported.

The change is of particular threat to Appalachia, where coal miners have adopted the practice of blasting the tops off of mountains to reach the coal seams within — a process that produces enormous amounts of waste, or “overburden,” that needs disposing.

A 1983 Interior Dept. rule, called the “stream buffer zone rule,” prohibits disposal within 100 feet of live streams — a restriction requiring companies to truck the waste elsewhere. But the mining industry has long-pushed for explicit allowances to dump the debris in adjacent valleys, even if that means burying streams.

The new rule does just that, asking only that companies explain why dumping in streams is unavoidable, and to minimize the environmental impact “to the extent practicable” — like asking for abstinence from a rabbit.

In a statement that can be described only as Orwellian, Interior Dept. spokesman Peter L. Mali told The New York Times that “the rule strengthens protections for streams.”

Federal law allows coal mine waste to be placed in streams, and the rule tightens restrictions as to when, where and how those discharges can occur.

An environmental impact statement accompanying the new rule indicates that 724 miles of Appalachian streams were “directly impacted” by mining between 1985 and 2001. At that rate, another 724 miles would be affected by 2018, the report said.

Stephen L. Johnson — who has used his post atop the Environmental Protection Agency to do everything but — approved the new rule, telling The Times that, “Americans should not have to choose between clean coal or effective environmental protection.”

(Huh?)

Anyone else singing bars of “Don’t know what you got til it’s gone?”

The Fish and Wildlife Service and the National Marine Fisheries Service are required to analyze the new rules to make sure they don’t violate the National Environmental Policy Act. This law requires federal agencies to come up with an Environmental Impact Statement (EIS) for a proposed rule that could harm the quality of the human environment. According to Wetzler, coming up with an EIS is a long and involved process.

In addition, the Fish and Wildlife Service and the National Marine Fisheries Service have to undertake “internal” consultations to determine the rules’ potential effects on species protected by the Endangered Species Act before the rules can be finalized. Yet another involved process, Wetzler says.

The Bush administration hopes to pass its new rules by November. It’s unclear how it plans to carry out the necessary reviews and consultations in a matter of days without violating any laws.

The agency actually received a total of 300,000 comments, but says 100,000 of those were form letters.

Just 15 employees of the Interior Dept.’s Fish and Wildlife Service are going through all the comments and plan to complete the process by close of business Friday. That means each employee would have to review seven letters every minute for the rest of this week. Some comments can get up to hundreds of pages long. That’s why this process usually takes months.

The chairman of the House Natural Resources Committee, Nick Rahall (D-W.V.), called this 32-hour deadline a “last-ditch attempt to undermine the long-standing integrity of the Endangered Species program,” according to The AP.

If you haven’t been following this story closely, let’s recap. So far, it seems the Bush administration has gone to great lengths to rush through its plan for the Endangered Species Act.

First, the White House tried keeping the plan hush-hush before it was leaked to The AP, at which point a last-minute, emergency press conference was called.

Second, the Bush administration decided that Congress would not have to review and approve the plan.

Third, the administration tried to get away with a 30-day public comment period, which is no time at all as far as public comment periods go. After facing serious backlash, it was forced to extend that period by another 30 days — which is still a really short period of time.

Now, the administration is taking just four days to review the many public comments.

Needless to say, things don’t work this fast in government. Many environmentalists say this is an obvious attempt to streamline an exceedingly unpopular proposal. But why is President George W. Bush working so hard to overhaul the Endangered Species Act on his way out of office?

Jamie Rappaport Clark, former head of the Fish and Wildlife Service and current executive director of Defenders of Wildlife, says the administration is responding to heavy pressure from industrial interests. “Somebody has lit a fire under these guys to get this done in due haste,” Clark told The AP.

If the White House manages to pass the proposed plan before a new president is sworn in, it could take a long time for that plan to be overturned. A new administration would have to launch a new public comment period and a new review process, which could take months or even years  — at least it usually does.

Multiple conservation groups are ready to take legal action if the current plan gets through. But we’ll have to wait and see how hard that would be and how long it would take, especially with the current administration out the door and a new one on its way in.

It’s not just because endangered-species workers love animal analogies. It’s because the new rule gives government agencies the power, sans oversight, to decide for themselves whether their own projects violate environmental law.

The public comment period on the Bush plan ends Tuesday. Over the past few days, 120 conservation groups have sent in about 100,000 angry comments opposing the rule change, reports Reuters. They say the plan is a scheme to gut the 35-year-old law.

Bush’s Interior Dept. says the goal of the proposed regulation is to cut red tape impeding government projects.

The one thing that’s clear is that the rule would fundamentally change the way the Endangered Species Act is implemented. If conservation groups decide that the change violates the law itself, the Interior Dept. can likely expect a lawsuit if its rule is approved.

These findings come even as the House on Tuesday approved a Democratic-sponsored bill to expand offshore oil drilling.

Illustration by:Matt Mahurin

The royalty-in-kind program, run by Interior’s Minerals Management Service, is the federal government’s biggest revenue source after income taxes. Since its creation a decade ago, its lack of transparency and ties to the oil and natural gas industry have set off alarm bells among congressional investigators and auditors at Interior.

Yet it was three reports issued last week by Interior’s inspector general that blew the lid off what is now considered a “culture of ethical failure” at Minerals Management Service — particularly in its royalty-in-kind program.

The inspector general reports spotlighted some employees at Minerals Management Service who broke government rules by accepting gifts and engaging in sexual relationships with employees of the oil and natural gas industry, among other things. One person cited was Gregory Smith, former director of the royalty-in-kind program. He allegedly partied with oil executives, accepted a consulting job that conflicted with his government work and made cocaine deals with his secretary.

The Project on Government Oversight’s report focuses on the inspector general’s troubling assessment that the energy industry has exploited the government’s royalty-in-kind program to drill on federally protected lands with little accountability. Energy companies self-report how much they drill. Companies can abuse the system by underreporting how much oil and gas they drill– and how much royalties the government should receive.

“The royalty-in-kind program exists to benefit the oil and gas industry to the detriment of the public,” concludes the report. A congressional hearing Thursday will further scrutinize the program’s industry ties.

But as Congress moves to expand offshore drilling, it’s unclear if the scandal-plagued federal program that manages drilling leases will be ended or reformed.

Interior created the royalty-in-kind program in 1998, and made it fully operational in 2004. Before it was launched, the Interior Dept. collected royalties from oil and gas companies “in-value” — meaning it received a percentage of their profits. Under “in-kind” royalties, Interior collects a portion, usually about one-sixth, of the oil and natural gas extracted by the companies leasing federal land.

Employees of the royalty-in-kind program are supposed to sell the oil and natural gas on the open market and turn the proceeds over to the U.S. Treasury.

In 2007, the program generated $9 billion — more revenue than that generated by “in-value” cash payments, according to the Bush administration, which has long supported “in-kind” royalties.

In 2001, the American Petroleum Institute, the industry’s trade association, wrote a memo to Vice President Dick Cheney’s notoriously secretive energy task force urging that the program “should be part of a comprehensive national energy strategy.”

But the Project on Government Oversight, with a catalog of glaring oversight problems, argue royalty-in-kind should no longer continue in its current form. For example, there is no third-party oversight of how many barrels of oil and cubic feet of natural gas companies extract from government land.

Instead, the oil and gas companies operate under an “honor system,” reporting their data and telling Interior what it owes in resource royalties. The program’s computer system is unable to track in a timely manner when industry doesn’t provide the agreed-upon royalties.

A report from the Government Accounting Office, the investigative arm of Congress, that examined Interior’s management of royalties, also released this week, effectively accuses companies of cooking the books by keeping “two sets of conflicting production data — one used by the company and one reported to Minerals Management Service.”

Just how much the government loses in revenue because of the royalty-in-kind program’s industry-friendly management is difficult to determine — because auditors don’t know how much oil and gas companies are extracting that is not being counted by Interior. But recent lawsuits against oil and natural gas companies suggest the amount of money involved.

Last Thursday, the 10th Circuit Court in Denver, where Minerals Management Service is based, found that Kerr-McGee, an energy company since acquired by the Houston-based Anadarko Petroleum Corp., withheld about $7.5 million in oil and gas resources from the royalty-in-kind program. The case was brought by Bobby Maxwell, a former Minerals Management Service auditor who quit the agency in disgust over its lack of oversight.

And in 2007, the Conoco Phillips subsidiary Burlington Resources Inc. agreed, in a case brought by the Justice Dept., to give the government $97.5 million in unpaid royalties.

A spokesman for the royalty-in-kind program declined to comment on the allegations made in the Project on Government Oversight report, instead referring to a statement from Interior Sec. Dirk Kempthorne in the wake of last week’s inspector general reports. “We will take swift action to restore the public trust,” Kempthorne said. “The [Minerals Management Service] will begin taking appropriate disciplinary actions.”

The inspector general’s reports of sex, drugs and largess from oil executives at Minerals Management Service were the rare government audits to make front-page news. They also provoked immediate reaction from lawmakers, including House Speaker Nancy Pelosi (D-Calif.). In a statement last week, she said, the “report documents the pervasive culture of exclusivity that has cheated the American taxpayer out of the billions dollars owed them by the oil companies.”

Yet Pelosi and House Democrats have not significantly rewritten proposed legislation that expands drilling to correct the alleged mismanagement at Minerals Management Service. The speaker did, however, call for a “very strong integrity piece” in the drilling legislation to deter future misconduct at the agency.

The House Committee on Oversight and Government Reform, which has investigated the royalty-in-kind program since the Clinton administration, has begged off holding hearings. The committee’s GOP leadership has called for it. But Rep. Henry A. Waxman (D-Calif.), the oversight chairman, said in a letter that while Interior Dept. mismanagement “epitomizes the close relationship between the Bush administration and the oil industry,” the House Natural Resources Committee has jurisdiction.

That committee is holding a hearing Thursday. Committee Chairman Nick Rahall (D-W.V.) has voiced support for expanded offshore drilling. He has also compared Minerals Management Service to a “television miniseries — and one that cannot air during family viewing time.”

With drilling legislation now heading toward the Senate, the agency and its royalty-in-kind program might not have much down time to clean up its act.