December 20, 2016

Although bitterly opposed by the mining industry, states and Native American communities among others, the stream rule finalized Monday by the Office of Surface Mining (OSM) serves a very useful purpose.  It shows what’s wrong with this administration’s regulatory policies and the malign motivation behind them.

The stream rule achieves a rare trifecta.  It delivers no environmental benefits, rests on fictitious legal and “scientific” authority, yet will be economically ruinous for mining communities. If the stream rule were a Broadway play, it would fold after opening night.  Given the promised opposition from the president elect and Senate Majority Leader McConnell, that will likely be its fate.

To learn what’s wrong with this rule, ask what’s right with it.  Water quality controls are already effectively imposed by the Army Corps and the Environmental Protection Agency as well as by state agencies. Wildlife protection measures are enforced by the U.S. Fish and Wildlife Service. Translation: pointless duplication.

Annual state reclamation reports offer no evidence to support the rule, which explains why OSM avoided consulting state agencies. States are a tedious hindrance to OSM, an attitude that prompted 19 states to call for a regulatory redo.

OSM conjures legal authority it doesn’t have but ignores restrictions it does have.  The agency offers a one-size-fits-all rule that flatly contradicts congressional intent to maximize flexibility for States with topographies as different as Wyoming’s and West Virginia’s. Yet the agency ignores language in SMCRA, the law governing coal mining, that prohibits the very inter-agency conflicts and duplications that OSM painstakingly created in this 1648-page behemoth.

Bigger here is not better. An independent analysis of the draft rule conducted at 36 operating mines shows up to 64 percent of the nation’s coal will be rendered uneconomic and upwards of a third of coal related jobs could be lost.  OSM by contrast based its cost analysis on “hypothetical” mines, consistent with the virtual reality it lives in.

So why destroy tens of thousands of additional jobs with a rule that states don’t want and the country doesn’t need? Maybe because OSM needs a new mission to compensate for the dwindling number of coal mines it now regulates.