Confusion Reigns Over Future of Stream Protection Regulation

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By Stephen Lee

Uncertainty is swirling over whether Republicans’ plans to kill the new stream protection rule will also salt the earth for all future stream-related rulemaking.

If so, as some regulatory specialists say they believe, then the 33-year odyssey to regulate mining waste in streams would come to a close.

But because the legislative tool being readied to kill the rule has only been used once before, no one knows whether a successful vote under the Congressional Review Act (CRA) really precludes future rulemaking.

“The only thing we have to go on is the language in the statute, and the only time it was used,” Susan Dudley, head of the Office of Information and Regulatory Affairs under President George W. Bush, told Bloomberg BNA.

Moreover, as long as doubt remains, agencies will be spooked from even trying to re-regulate in the same area, as the Occupational Safety and Health Administration has been following the only successful CRA repeal 15 years ago, sources say.

“It’s disconcerting,” Jeremy Nichols, climate and energy program director at WildEarth Guardians, told Bloomberg BNA. “We’re in worst-case scenario planning mode.”

The stream protection rule (RIN:1029-AC63) limits the placement of waste in streams and drinking water sources, as well as the amount of waste generated overall by mining operations. Republicans in Congress, including Senate Majority Leader Mitch McConnell (Ky.), have explicitly said they plan to use the CRA to repeal the regulation.

Murky Language

The key provision of the CRA—which, broadly, allows Congress to hold an up-or-down vote on any major regulation—bars agencies from issuing any rule that is “substantially the same” as a rule overturned under the statute.

To many agency staff members, that phrase means an agency can’t touch the same topic again. In the only case study available, a Republican Congress shot down OSHA’s Clinton-era workplace ergonomics rule in 2001, and the agency has made no attempts to revive it since, despite unions’ many entreaties that such a rule is badly needed.

But Paul Noe, a former Senate staff member who helped draft the CRA in the mid-1990s, told Bloomberg BNA that Congress didn’t intend to rule out all future rulemaking in the same area. Rather, the intent was to prevent an agency from merely waiting for a friendlier Congress and president to reissue the same rule with superficial wording changes, he said.

Statute’s Architect Explains

“What it clearly means is that there is no room for an agency to engage in gamesmanship and pursue a similar regulation in the future,” Noe said. “The message from Congress is clear: the agency can’t do an end-run around the extraordinary action of Congress and the President legislatively overturning a rule.”

A future administration could step around the CRA’s “substantially the same” clause by taking a different approach to regulation the second time around, Noe said. For example, if its first attempt at rulemaking described a prescriptive, command-and-control approach, its post-CRA stab could give companies the freedom to find their own ways of meeting the rule’s targets.

Whether an agency has met the CRA’s requirements would hinge on the text of the authorizing statute, the text of the regulation itself and the facts and circumstances specific to the issue, according to Noe.

99 Percent of the Ground

Similarly, Adam Finkel, a former OSHA policy analyst who was at the agency during the CRA repeal of ergonomics, said the legislative history under-girding the act doesn’t support the common interpretation that no regulation should be possible again.

“Between saying, ‘You can’t reissue, verbatim, the exact same rule,’ and saying, ‘You can’t ever talk about coal mining waste ever again’ is a middle ground, and it’s about 99 percent of the ground,” Finkel told Bloomberg BNA.

Yet Finkel, now an administrative law professor at the University of Pennsylvania, said only about half the regulatory staffers he speaks to, across the federal government, share his interpretation.

“People are getting advice today at the Department of Labor and elsewhere, ‘Don’t put out this rule, because not only is it going to be vetoed, but never again in human history can you try to regulate again,’” Finkel said. “So it’s not just going back to square one, but it’s losing ground. That’s an insane reading of the statute.”

To contact the reporter on this story: Stephen Lee in Washington, D.C., at

To contact the editor responsible for this story: Larry Pearl at

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