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This is not an acceptable decision from the EPA during a Democratic administration:

Today, the Environmental Protection Agency allowed the Kentucky Department of Environmental Protection to change how toxic selenium pollution from mountaintop removal mines is measured for the purposes of determining compliance with the Clean Water Act. Selenium, which causes significant biological damage to fish native to the waters of Appalachia, is a toxic pollutant discharged from valley fills into rivers and streams below mountaintop removal sites. The EPA-backed changes to how Kentucky measures selenium pollution allow the state to rely on an impractical and complicated test of tissue samples from fish rather than the current practice of directly sampling the water discharged below mountaintop removal mines and other selenium sources. EPA’s capitulation gives a free pass to industry and will allow unacceptably high levels of selenium pollution to continue flow into Kentucky’s waterways.

If anything, Obama’s EPA should be cracking down on coal mining and making it harder for the mountaintop removal industry to destroy the mountains and ecology of Appalachia. There is no good reason not to directly sample the water. None. Except that the coal industry doesn’t like it. Because ultimately this isn’t about the poisoning of fish. It’s about the poisoning of people. If the fish are poisoned, the people probably are at higher risk as well. Of course, one expects nothing else from the coal industry; it’s spent the last 125 years treating the people of Appalachia like feudal serfs. But for the Obama EPA to actually weaken testing rules, that I don’t get.

Here’s some background on why this all matters:

Current selenium limits in states like West Virginia have helped the Sierra Club and other nonprofits force coal companies to hand over millions of dollars in fines and cleanup costs, but those standards are based on older EPA water criteria and guidance that hasn’t been revised in nearly a decade. New data has suggested less stringent requirements would be adequate and the EPA has said it is updating the acute and chronic freshwater ambient water quality standards for selenium, though the agency has yet to act.

Kentucky is now trying to move ahead while the agency drags its feet, having developed its own criteria with help from the EPA and submitted it for federal approval. The proposal would require that high selenium levels be present in fish tissue before triggering a violation, and it would likely be emulated by neighboring states if it gets the green light from the EPA.

In taking the initiative, Kentucky is hoping to put more regulatory control in its own hands on an issue that has been litigated frequently in other states like West Virginia, according to Crowell & Moring LLP partner Kirsten L. Nathanson.

“The environmental groups have been driving enforcement through lawsuits,” Nathanson said. “Kentucky is trying to find an instructive solution to these issues and avoid some of these ad-hoc enforcement actions by taking affirmative control of its regulatory program for selenium.”

Industry has always preferred state-led regulatory programs because the states are far easier for industry to control than the feds. Politicians come cheaper and they tend to be much friendlier to local industry.

A very disappointing decision.

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  • Matt

    So all they have to do is make sure to dump *enough* toxic dreck in the stream to kill all the fish, then blammo no more testing, right?

  • LosGatosCA

    Hopefully, we can point to his appointment of 2 more Supreme Court justices as well as the Court of Appeals finally breaking the filibuster as the main accomplishments during his two terms. Because . . . I’m clearly missing the eleventy dimensional benefits to all these Republican appointments to the Daddy jobs, the non-prosecutions in the finance frauds and torture, etc. the environmental decisions, and the like.

    We’re being governed like the center-right country this administration clearly wants.

    • jeer9

      C’mon. Be fair. Carter would have lowered selenium standards, too.

    • jeer9

      the non-prosecutions in the finance frauds

      Judge Rakoff piped in the other day with some thoughts on these non-prosecutions.

      “While officials of the Department of Justice have been more circumspect in describing the roots of the financial crisis than have the various commissions of inquiry and other government agencies, I have seen nothing to indicate their disagreement with the widespread conclusion that fraud at every level permeated the bubble in mortgage-backed securities.

      Who, for example, were generating the so-called “suspicious activity” reports of mortgage fraud that, as mentioned, increased so hugely in the years leading up to the crisis? Why, the banks themselves. A top level banker, one might argue, confronted with increasing evidence from his own and other banks that mortgage fraud was increasing, might have inquired as to why his bank’s mortgage-based securities continued to receive triple-A ratings? And if, despite these and other reports of suspicious activity, the executive failed to make such inquiries, might it be because he did not want to know what such inquiries would reveal?

      This, of course, is what is known in the law as “willful blindness” or “conscious disregard.” It is a well-established basis on which federal prosecutors have asked juries to infer intent, in cases involving complexities, such as accounting treatments, at least as esoteric as those involved in the events leading up to the financial crisis. And while some federal courts have occasionally expressed qualifications about the use of the willful blindness approach to prove intent, the Supreme Court has consistently approved it.
      Actually, given the fact that these securities were bought and sold at lightning speed, it is by no means obvious that even a sophisticated counterparty would have detected the problems with the arcane, convoluted mortgage-backed derivatives they were being asked problems for the market as a whole.

      But if your priority is prosecuting the company, a different scenario takes place. Early in the investigation, you invite in counsel to the company and explain to him or her why you suspect fraud. He or she responds by assuring you that the company wants to cooperate and do the right thing, and to that end the company has hired a former Assistant U.S. Attorney, now a partner at a respected law firm, to do an internal investigation. The company’s counsel asks you to defer your investigation until the company’s own internal investigation is completed, on the condition that the company will share its results with you. In order to save time and resources, you agree. Six months later the company’s counsel returns, with a detailed report showing that mistakes were made but that the company is now intent on correcting them. You and the company then agree that the company will enter into a deferred prosecution agreement that couples some immediate fines with the imposition of expensive but internal prophylactic measures. For all practical purposes the case is now over. You are happy because you believe that you have helped prevent future crimes; the company is happy because it has avoided a devastating indictment; and perhaps the happiest of all are the executives, or former executives, who actually committed the underlying misconduct, for they are left untouched.

      I suggest that this is not the best way to proceed. Although it is supposedly justified in terms of preventing future crimes, I suggest that the future deterrent value of successfully prosecuting individuals far outweighs the prophylactic benefits of imposing internal compliance measures that are often little more than window-dressing. Just going after the company is also both technically and morally suspect. It is technically suspect because, under the law, you should not indict or threaten to indict a company unless you can prove beyond a reasonable doubt that some managerial agent of the company committed the alleged crime; and if you can prove that, why not indict the manager? And from a moral standpoint, punishing a company and its many innocent employees and shareholders for the crimes committed by some unprosecuted individuals seems contrary to elementary notions of moral responsibility.”

      • YankeeFrank

        Rakoff is all alone up there, speaking the truth while the rest of those with the power to do anything quietly go along, allowing the greatest crime in history to go not only un-prosecuted, but not even investigated.

        Recently, Obama’s new appointee to head the SEC, Mary Jo White, reprimanded Rakoff for being too activist.

        Enough said.

        Frankly, I’m not sure why Erik is so surprised at this environmental decision. Obama has done less than zero on the environment so far and we have yet to watch him do anything on Keystone XL.

  • Stag Party Palin

    I voted for Obama twice and would do it again. However, if there was one word I would use to sum him up, it would be chickenshit. I’m beginning to think we elected a mid-level bureaucrat at the DMV to be our president.

    • Vance Maverick

      I really wish I had had not only the realism and good blog friends to get the bumper sticker, but the guts to put it on a bumper or other fixed surface. Now it’s like saying you enjoyed the band before they were cool.

    • That’s a bit strong. We hired an establishment Democrat from Harvard with a University of Chicago economics sensibility.

      Don’t rock the freshwater economics boat.

      • joel hanes

        Obama’s the best Republican President since Eisenhower.

        • The prophet Nostradumbass

          Oh, good lord, not this crap again.

        • Andy

          Right cause liberalism can’t fail, it can only be failed!


    • somethingblue

      Boy, you guys are gonna feel pretty silly in 2016 when you see how much the deficit’s been reduced!

  • What does someone expect from a guy who touted “clean coal” while in the Senate?

  • GoDeep

    Because ultimately this isn’t about the poisoning of fish. It’s about the poisoning of people.

    There were a number of good points in this, particularly the point abt state level officials being easier to bribe/bully/cajole/persuade than DC officials. But I thought the point above was the best.

    Question: Could it be that the EPA feels like fish are the canary in the coal mine? If the toxicity threshold in fish isn’t breached then humans aren’t in danger? Before we flame the Administration its worthwhile seeing if there’s a good scientific/medical reason for this change.

    • Hanspeter

      Except that if the canary/fish goes down, you can’t just open the window and air things out before things get bad for the people. The selenium (and other toxins) will stick around for far longer, even if you force an immediate 100% stop to all new emissions.

      Furthermore, even low levels that might not cause obvious issues can increase the level of morbidity/disability in the region. Unless the companies can demonstrate that their new X threshold of selenium in fish is equivalent to or stricter than the previous Y threshold in water (Hah!), this is to please the companies, not for any scientific reason.

  • I’m reminded of Pollution, Gaiman/Pratchett’s horseman of the apocalypse, and his preference for arsenic and heavy metal pollution because it damages the environment even longer than plutonium….

    • Tristan


  • g

    Well, I guess too much of a good thing;)
    Could they refine it for us? My company uses Selenium for our solar cells (aka CIGS) to make the earth ‘greener’, but, even we have precautions on exposure. Very small amounts are used by various living things, but, when you pull lots of stuff out of the ground and only take what you want the rest is usually much to concentrated for anything else to deal with it (as Dr House learned, you should only eat so many Brazil nuts).
    And just saw one of our Scientists working on getting the cadmium sulfide out of product too.

  • News Nag

    You’re missing the point. It’s a President Jeb Bartlett favor to the Democratic Kentucky governor for instituting a working healthcare insurance format. Oh, this isn’t TV?

  • Bob

    Let’s be honest, the conservatives run the establishment Democratic Party and the extreme right runs the Republican Party. This talk about scared Democrats is just nonsense and as usual this president does exactly what he wants to do while mostly pretending to ‘listen’ to the progressives which he in reality hates. Just because he’s not a nut job on social issues doesn’t make him much better. I, for one, will never for another Illinois Democrat again starting with Pat Quinn and his new BFF, Paul Vallas.

  • James E. Powell

    Industry has always preferred state-led regulatory programs because the states are far easier for industry to control than the feds.

    Which is one big reason why I grip every time someone wants to give Nixon a gold star for the EPA. It was born crippled because of Nixon’s “New Federalism” approach. Leaving things to the states, then as now, is a dodge, a way to keep things from happening.

  • Avelino

    If all the fish end up dead, how do they test for selenium levels?

    • Or as Lee Iacocca once asked about clean air:

      “How many selenium free fish do we need? Really, how many?”

      Also, too, there’s no evidence that eating selenium fish lowers your IQ like lead. Yet.

      And even if all the fish die, problem solved. No more testing required. Look forward, not back.

  • Lee Rudolph

    It’s astoundingly hard to find good information on the role of selenium in jellyfish metabolism.

    On the other hand, my day has (almost) been made by the discovery of the existence of the journal ITE Letters on Batteries, New Technologies and Medicine (with News), the successor since 2000 of ITE Battery Letters (1999, 1 volume), and the happy publisher of “The Oxidation State and the Distribution of Selenium in Jellyfish in a Breeding Environment” by Kai et al.

  • Royko

    Environmentalist punching is even more popular than hippy punching, both for the party and the administration. See: offshore drilling, pre-Gulf disaster.

  • Tom Stickler
  • jkay

    I’d guess it happens the same way the troubles in my favorite issue of immigration happen, how the President’s ignored on his decent order against immigrant processing. Remember, the Shrubbies left landmines in the form of some of the worst hires around.
    Just like Reagan appointees radically poisoned Clinton’s admin.

  • joe from Lowell

    There is no good reason not to directly sample the water. None. Except that the coal industry doesn’t like it.

    Given the administration’s oft-demonstrated willingness to piss off the coal industry, I’m not buying the labor history professor’s assertion here.

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