GOP Readies Repeal of New Stream Protection Rule

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By Stephen Lee

Within hours of the Interior Department’s release of a final rule on coal and water pollution, Republicans in Congress began gearing up to repeal it.

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. The rule, released Dec. 19, will protect 6,000 miles of streams and 52,000 acres of forests, according to the Office of Surface Mining Reclamation and Enforcement.

Congress can try to scrap the rule when President-elect Donald Trump takes office Jan. 20. Under the little-used Congressional Review Act, any significant new rule can be subjected to a vote in Congress within 60 legislative days. If both chambers vote the rule down and the president signs off, the regulation is struck.

Senate Majority Leader Mitch McConnell (R-Ky.) is already talking about it.

When Congress begins its new session in January, he will “introduce a resolution of disapproval under the Congressional Review Act” to overturn “this egregious regulation and work with my colleagues to use every tool available to turn back this regulatory assault on coal country,” McConnell said in a statement Dec. 19.

Only a simple majority is required in both the House and Senate under the Congressional Review Act, and the votes can’t be derailed by filibusters in the Senate.

Signaling Intent

Given Republican majorities in the House and Senate, coupled with Trump’s plainly stated intention to kill the rule, it appears highly vulnerable to repeal, despite the fact that the Congressional Review Act has been used successfully only once before.

Rep. Bill Johnson (R-Ohio), said that “doing all I can to urge House leadership to use the Congressional Review Act to overturn this rule” will be his highest priority in January.

Similarly, Rep. Rob Bishop (R-Utah), chairman of the House Natural Resources Committee, said he “look[ed] forward to working with the Trump administration to overturn this unparalleled executive overreach and implement policies that protect communities forsaken by this administration.”

“I can assure Alaskans that Congress will work to overturn this rule, and we will urge the new administration to follow the law as it considers next steps,” said Sen. Lisa Murkowski (R-Alaska).

“It is a bad rule and has definitely been questioned,” Christian Palich, president of the Ohio Coal Association, told Bloomberg BNA. “I think we have a good chance of overturning it.”

Democrats, too, are bracing for a Congressional Review Act challenge.

“Unfortunately, Republicans have attacked this rule incessantly since before they even knew what was in it, and I fear that these protections may become another casualty of their efforts to prioritize profits over people by repealing essential health and safety regulations in the next administration,” said Rep. Raul Grijalva (D-Ariz.), ranking member on the House Natural Resources Committee.

Time Constraints

But time constraints could complicate matters for Republicans. Debates must be held on the floor of both houses, and Republicans will have dozens of Obama-era regulations they will want to roll back, said Cary Coglianese, an administrative law professor at the University of Pennsylvania.

Any rules submitted after June 13 are subject to disapproval by the new Congress, according to the Congressional Research Service.

“Congress only has so many hours in the day, and only so many hours to be devoted to this on the floor,” Coglianese told Bloomberg BNA. “It’s a question of legislative time: How many of these they will get to? They will have to prioritize.”

Agency Hopeful

OSMRE chief Joseph Pizarchik told Bloomberg BNA in November that he wasn’t convinced the Trump administration will try to kill the rule, because it will create more than twice as many jobs as it will eliminate by requiring operators to perform more duties for reclamation, including stream monitoring and reclamation.

“Coal miners need jobs,” Pizarchik said. “They need clean water. And they don’t need another Flint, Michigan.”

The National Mining Association has countered that the rule will kill at least a third of all coal-related jobs.

Litigation Route

If Republicans find their calendar too clogged for a Congressional Review Act challenge, another pathway for killing the rule would be a lawsuit by industry in U.S. District Court.

Such a challenge would likely be based on the claim that OSMRE’s scientific findings don’t lead to the conclusion the agency reached, John Cossa, attorney with Beveridge and Diamond PC in Washington, D.C., whose practice is focused on the development of energy and mineral resources on federal land, told Bloomberg BNA.

A lawsuit also could contend that the rule was passed without meaningful participation from stakeholders. Congressional Republicans have made that argument, and OSMRE has denied it.

In a March House hearing, agency head Pizarchik said OSMRE made many efforts to reach out to the states, including releasing an advance notice of proposed rulemaking, convening stakeholder outreach meetings and holding nine scoping meetings.

‘Uncharted Waters’

Trump could even instruct the Justice Department not to defend the rule in a lawsuit. Doing so would be highly unusual, even despite the change in administration, but Trump is enough of an outlier that the possibility remains open, Cossa said.

“These are uncharted waters,” he said.

During the March House hearing, Johnson, the Ohio Republican lawmaker, threatened to call on OSMRE’s authorizing and appropriations committees to withhold the agency’s funding if it pushes forward with the rule.

More Tools for Regulators

The rule gives regulators more tools to measure whether a mine is designed to prevent damage to streams outside the permit area.

The new standard protects “all existing and reasonably foreseeable uses of surface water and groundwater outside the permit area,” according to a regulatory preamble.

Other sections of the rule will:

  •  require operators to collect data about the site of their proposed operations, as well as adjacent areas, before they start mining, to establish a baseline for measuring the impacts of their activities;
  •  require operators to ensure that land disturbed by mining is restored to a condition capable of supporting the uses that it was capable of supporting prior to mining;
  •  adjust monitoring requirements to allow for the rapid detection and correction of any problems in the quality or quantity of surface and groundwater; and
  •  ensure that mine operators and regulatory agencies use the most current science and technology.

—With assistance from Rachel Leven in Washington, D.C.

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

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The final rule is available at http://src.bna.com/kQd

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