The Obama administration’s years-in-the-making rule to protect streams from mountaintop removal coal mining is on track to go into effect a day before President-elect Donald Trump takes office, meaning Congress will have to step in to kill it quickly.
Trump has railed against regulations on the coal industry in general, although he has not specifically addressed the Interior Department’s stream rule, which has been in the works since 2009 and was finally released Monday. His pick to be Interior secretary, Rep. Ryan Zinke (R-Mont.), is an ardent coal backer and has called for Congress to block the rule. Zinke would be in charge of unwinding the rule, but that process could take years through normal administrative channels. A quicker route runs through Congress, where Republicans are assembling a hit-list of recently passed rules they can block with little recourse from Democrats.
“It is disappointing, but certainly not surprising, that the Obama administration has decided to pursue this last-ditch effort to further harm West Virginia coal jobs,” said Shelley Moore Capito (R-W.Va.), who says the rule will hurt miners in her state. “Fortunately, the decision by voters last month makes today’s announcement by the Office of Surface Mining an exercise in futility. Working with President-elect Trump and our Republican congressional majority, I am confident that we will be able to use the Congressional Review Act to stop this rule from taking effect.”
Sen. Joe Manchin (D-W.Va.), who cosponsored a bill with Capito and other Republicans that would have effectively blocked the stream rule, did not specifically mention the CRA in a statement on the rule Monday. But he said he would “pursue legislation to ensure it does not harm our coal mining communities and economies.”
The Obama administration did not brief outside green groups ahead of the rule’s release Monday, a step it has taken with major rules in the past, said Thom Kay, a senior legislative representative for Appalachian Voices who has participated in previous briefings.
Some environmentalists expressed surprise that the Obama administration essentially forced the stream rule into a GOP firing line, practically guaranteeing its repeal in some form. Trump’s electoral victory last month quickly spurred speculation that Interior might shelve the rule rather than finalize it, in order to avoid a CRA showdown that could prevent the department from ever updating the rule again.
While some green groups are upset the Obama administration was not more aggressive, others are planning to defend the rule as a modest step to improve water quality in the coalfields, in line with Trump’s previous insistence that he favors “clean” air and water without unduly harming businesses.
“I just hope people read it before they propose killing it. It’s very different than the proposed rule. One of the primary pieces in the monitoring, so if there is a big change in water quality because contaminants get into the water supply, they can be addressed immediately,” said Collin O’Mara, president and CEO of the National Wildlife Federation. “I’m hoping that folks take a look at the changes that were made and how the concerns that were raised were addressed, but it’s going to be a difficult rule to protect.”
Republicans have been critical of the Obama administration’s rulemaking since 2011, when a leaked internal document estimated an earlier version of the rule would cause coal mining job losses in excess of 7,000. Interior has long disputed that figure, and argued the revised rule would end up creating jobs in coal communities.
The final rule estimates an annual average employment gain of 156 jobs between 2020 and 2040, largely because of increased reclamation work — including annual coal mining job losses of 124, compared with 280 jobs gained each year from implementation.
Congressional leaders will have to decide which rules to prioritize, but given Trump’s campaign promises to restore the coal industry by repealing regulations, this rule presents a tempting target that would showcase immediate results early in his presidency.
“We want clean air. We want clean water. But to do that, you don’t have to destroy our country and destroy our businesses,” Trump said at a rally in North Carolina earlier this year.
Repealing the stream rule is unlikely to prove a panacea for the ailing coal industry, which has declined for decades under administrations of both parties, because of technological changes, environmental regulations and competition from cheap natural gas. A recent Energy Information Administration report found that coal production in 2015 was at its lowest since 1986, with Appalachia seeing an even stronger decline. Employment in coal mines was at just less than 66,000, the lowest level EIA had seen since tracking began in 1978.
Still, the National Mining Association immediately called for lawmakers to pass a CRA resolution, which would not only would kill this rule but would prevent Interior from ever issuing an update that is “substantially the same” in the future.
CRA resolutions, which cannot be filibustered, are subject to up to 10 hours of debate in the Senate and can only be used within 60 legislative days of a rule’s enactment, limiting the number that Republicans could push through given a heavy workload to confirm political appointees and start on their own legislative agenda, including overhauling the tax code and repealing the Affordable Care Act.
Congress may only have time to undo two or three energy rules with CRA resolutions, given the floor time they require and the desire to target non-energy rules as well, and the stream rule is a prominent target for one of those spots, according to a note to clients from analyst Kevin Book of ClearView Energy. (Interior’s recent venting and flaring rule is “a strong contender for the No. 2 position,” he added.)
“I look forward to working with the Trump administration to overturn this unparalleled executive overreach and implement policies that protect communities forsaken by this administration,” House Natural Resources Chairman Rob Bishop said in a statement.
There are no “concrete” plans for a CRA vote, said Bishop spokeswoman Molly Block. But it’s on the list for consideration, she said, along with the Bureau of Land Management’s recent venting and flaring rule. Repealing older regulations despised by the GOP, including the Clean Power Plan and the Waters of the U.S. rule, would require more lengthy and more difficult administrative rulemakings that could takes years, or securing 60 votes in the Senate to amend the laws underlying them.
The CRA has been used only once successfully, to kill an ergonomics rule finalized in the final days of Bill Clinton’s administration. But observers expect that the Republican-controlled Congress will exercise that power significantly to attack Obama regulations across the board early next year.
Interior spokeswoman Jessica Kershaw declined to discuss the potential for Congress or Trump to roll back the rule, saying only that the department “is expected to carry out applicable laws that guide our mission of responsible stewardship of public lands, water and wildlife management and that is what we will continue to do … no matter who the president is.”
The stream rule, out of Interior’s Office of Surface Mining Reclamation and Enforcement, is the broadest regulation directly affecting coal mining since the Labor Department cracked down on safety violations following the 2010 Upper Big Branch mine disaster that killed 29 miners.
“This updated, scientifically modern rule will make life better for a countless number of Americans who live near places where coal is being mined,” said OSM chief Joseph Pizarchik.
It updates a 1983 regulation aimed at protecting streams from the effects of mountaintop removal coal mining, particularly in Appalachia. A George W. Bush-era rewrite that drew environmentalists’ scorn never went into wide effect, and ultimately was tossed out by a federal judge.
The updated regulation keeps in place a 100-foot buffer zone around most streams, even intermittent waterways. It strengthens other aspects of the rule, requiring companies to establish baseline pollution levels in waterways before mining begins for better impact management during and after mining, as well as new details on how to restore and protect plants and wildlife.
Several green groups have also argued that the Obama update was too moderate and didn’t go far enough in light of scientific advances in understanding mining’s effects on water and aquatic life.
“Though it isn’t perfect, the Stream Protection Rule does provide important protections that can help keep coalfield communities safe and takes steps toward holding coal mining companies accountable,” said Dalal Aboulhosn, the Sierra Club’s deputy legislative director for land and water.
Kay said he was “disappointed” the rule didn’t go further to curtail mountaintop removal mining.
“Moving forward, the Trump administration should be focusing on ways to diversify and strengthen Central Appalachia’s economy, rather than taking on a political fight against a moderate and reasonable rule,” he said.
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- On December 20, 2016