Lawsuit, Resolution Aim To Push Stream Rule To ‘Dumpster’

Via E&E Publishing: 

Critics this week opened up two new fronts in their campaign to take down the Obama administration’s controversial new restrictions on coal mining pollution.

North Dakota yesterday became the first state to sue the Interior Department over the Stream Protection Rule released earlier this week. Meanwhile, Republicans in Congress moved forward with their own plan to kill the regulation (Greenwire, Dec. 19).

The National Mining Association, which has spearheaded opposition to the rule, yesterday said the rule, which imposes new standards and monitoring requirements on coal companies and state regulators, is “destined for the dumpster.”

North Dakota Attorney General Wayne Stenehjem (R) filed the lawsuit against Interior’s Office of Surface Mining Reclamation and Enforcement (OSMRE), asking the U.S. District Court for the District of Columbia to vacate and prohibit any enforcement of the Stream Protection Rule.

“This case involves a last-ditch effort by the outgoing Administration to encroach on the clear authority granted to the State of North Dakota and the [North Dakota] Public Service Commission,” he said.

The commission is the primary coal regulator in North Dakota under the cooperative federalism model outlined in the Surface Mining Control and Reclamation Act.

North Dakota contends that the Stream Protection Rule violates both SMCRA and the U.S. Constitution’s 10th Amendment regarding states’ rights by overextending OSMRE’s authority.

The rule defines what constitutes “material damage” to water beyond the area permitted for mining. Under new data collection requirements, regulators are to use new baseline data to determine whether there are violations of the Clean Water Act or Endangered Species Act at mine sites, or whether pollution precludes any downstream groundwater use that existed before mining began.

OSMRE has said the rule was intended to modernize outdated standards to include new science, including research linking mountaintop-removal coal mining to elevated rates of cancer and other illnesses downstream, particularly in Appalachia.

The coal industry questioned those studies, arguing that the rule imposed a massive burden that was intended to put the coal industry out of business, not prevent environmental damage.

State regulators also condemned the rulemaking after nine out of the 11 states that signed on to help write it withdrew in protest over the outreach by OSMRE, which has vigorously defended the transparency of the seven-year process.

“The agency ignored all of our input and went ahead with a one-size-fits-all rule that will be extremely destructive to North Dakota industry while addressing no identified problem in our state,” said Public Service Commission Chairwoman Julie Fedorchak.

According to court documents, OSMRE’s most recent evaluation of North Dakota’s regulatory program found no issues, but OSMRE has said those evaluations do not account adequately for pollutants like conductivity and selenium.

Congressional resolution

Stenehjem urged President-elect Donald Trump and Congress to quickly repeal the rule, but Capitol Hill coal advocates already have a plan.

Hours after the rule came out, Senate Majority Leader Mitch McConnell (R-Ky.) promised to use the Congressional Review Act to strike down the rule (E&ENews PM, Dec. 19).

The seldom-used law gives Congress 60 workdays to void a regulation.

Rep. Evan Jenkins (R-W.Va.) yesterday introduced a resolution of dismissal, H.J.Res. 107, in the House.

“I urge my colleagues to join me in saying no to this president — no more over-regulation, no more lost jobs, and no more policies that put West Virginians out of work,” Jenkins said in a statement.

President Obama would likely veto it, but Jenkins, Republicans and coal-state Democrats have plenty of time to pass the resolution after Trump takes office promising to ax coal regulations.

The dismissal requires only a simple majority to pass, undercutting filibuster attempts. Under the law, a dismissal means the rule could not be reintroduced without Congress’ consent unless it is “substantially” changed. According to the Congressional Research Service, “substantial” is not defined, but actions made under the law are not subject to judicial review.

See the article here.