House easily approves bill to block stream rule

E&E News
By Manuel Quinones
March 25, 2014

The House this afternoon voted 229-192 to approve legislation to block the federal Office of Surface Mining from promulgating the controversial Stream Protection Rule to police coal mining.

The legislation, H.R. 2824 by Reps. Bill Johnson (R-Ohio) and Doug Lamborn (R-Colo.), would instead call on the Obama administration and states to implement the 2008 Stream Buffer Zone Rule. They say the forthcoming OSM rule will likely hurt coal mining.

Ten Democrats, including Reps. Nick Rahall of West Virginia, Jim Matheson of Utah and Henry Cuellar of Texas, crossed the aisle to vote with the House Republican majority on the issue.

Also today, House Natural Resources Chairman Doc Hastings (R-Wash.) announced he issued a subpoena to the Interior Department's Office of Inspector General over a recent report connected to the rule and former OSM contractors working on its development (E&ENews PM, Dec. 20, 2013).

Panel Republicans have been investigating the Stream Protection Rule for years. And Hastings has for weeks been asking for an unredacted copy of the OIG report. He believes it may reveal new issues with current contractors.

Hastings on the House floor this afternoon complained about what he called a "gross mismanagement of the rulemaking process" because of problems with former contractors, including allegations of shoddy work and a dispute over calculating economic impacts.

Hastings charged that OSM wanted to improperly use the 2008 rule, implemented only in select jurisdictions, as a base line for calculating the economic impacts of the forthcoming rule.

Even without the unredacted report, Hastings and Lamborn, chairman of the Energy and Mineral Resources Subcommittee, touted 2012 statements from Emily Medine, who they describe as a current OSM contractor working on the new rule.

Medine, according to a document presented by Hastings, said the 2008 rule is stronger than a 1983 standard, which many Democrats and environmentalists favor. She said, according to the document, that the Obama administration appeared to want to "kill coal mining."

The OIG report, released last year, confirmed a debate about calculating the rule's job loss impacts but said it found no evidence of political interference or wrongdoing.

Hastings said environmentalists favor the 1983 rule because it contains loopholes that allow "more litigation and less certainty." Environmental groups have denied the claim.

The Johnson-Lamborn bill, by requiring states and tribes to implement the President George W. Bush-era rule, would effectively overturn a recent U.S. District Court ruling against the 2008 rule.

U.S. District Court for the District of Columbia Senior Judge Barbara Rothstein, a Democratic appointee, last month faulted the Bush administration for failing to enter formal consultations with the Fish and Wildlife Service on the Stream Buffer Zone rule.

During debate today, Hastings lamented that the court ruling struck down the "more modern and more protective" 2008 rule.

Ongoing debate

During the floor debate, Republicans complained about what they call the Obama administration's war on coal. Many Democrats focused on the risks associated with mountaintop-removal coal mining and said the 2008 rule includes too many exceptions.

"This bill does nothing to protect people from the impacts of mountaintop-removal mining," said Rep. Rush Holt of New Jersey, the top Democrat on the Energy and Mineral Resources Subcommittee. "The real misconduct was from the Bush administration. They did not do the consultation that was required under the law."

Holt, like many Democrats over the past several years, complained about critics discussing the "imagined impacts of a rule that hasn't even been released yet."

Rep. John Yarmuth (D-Ky.) held up a bottle with discolored water caused by Appalachian strip coal mining. "No one here would risk their health by drinking this water," he said.

But Rahall, a strong pro-coal lawmaker, recalled helping write the Surface Mining Control and Reclamation Act. He says OSM may be pursuing regulations tougher than the law envisioned.

"Any such rule should work within the statutory framework of SMCRA," said Rahall, adding that the current rulemaking "does not meet that test" because it aims at "halting a mining process that is specifically condoned by SMCRA."

The House today voted down two Democratic amendments. One by Rep. Alan Lowenthal of California would have required states to implement a President Reagan-era rule, unless their own rules are stronger.

Another by Rep. Matt Cartwright of Pennsylvania would have similarly allowed states to enforce their own guidelines to protect waterways from coal mining as long as they meet certain guidelines.

OSM has been taking a higher profile in the ongoing debate over mountaintop-removal mining and oversight of coal mining. Beyond the rulemaking, the agency has been more forceful in intervening in state regulation.

OSM, for example, is investigating West Virginia's coal mine regulatory program under SMCRA after a petition from environmental groups. And last week, environmentalists in Illinois threatened to sue OSM if it didn't scrap that state's program.