Trump and GOP Threaten to Overturn Obama's New Mining Stream Protection Rule

Posted Dec. 28, 2016

MP3 Interview with Marty Hayden, vice president for policy and legislation with the group EarthJustice, conducted by Melinda Tuhus


In the waning days of the Obama Administration, an environmental regulation that was years in the making was finalized in December. The Stream Protection Rule, which will take effect on Jan. 19, 2017,was designed to protect streams and other bodies of water in Appalachia from pollution and even obliteration by mountaintop removal coal operations. The new measure is an improvement over a previous regulation implemented during the George W. Bush era, but, according to some environmentalists, it does not go far enough.

To make matters worse, the incoming Trump administration and the Republican-controlled Congress have the power to repeal it, because it was promulgated so late in Obama's tenure, which is something Senate Majority Leader Mitch McConnell has already promised to do.

Between The Lines' Melinda Tuhus spoke with Marty Hayden, vice president for policy and legislation with the group EarthJustice, which has represented opponents of mountaintop removal coal mining who have campaigned to safeguard air and water quality. Here, Hayden explains what the stream protection rule does and doesn't do, and what's likely to happen to the measure when Donald Trump takes office.

MARTY HAYDEN: In 1977, Congress passed the Surface Mining Control and Reclamation Act; that's the law that regulates coal mining. Part of that law prohibited coal mines from causing material damage to surface waters and ground water. In 1983, the Reagan administration created the Stream Buffer Zone rule, which prohibited mining within 100 feet of streams. Now, the problem with that it was never really enforced by the states. In 2008, President George W. Bush did his own rule to replace the Reagan rule, and his rule literally just said that they should "minimize direct disturbance to the extent deemed reasonable" to streams, which for all practical purposes was so vague as to be unenforceable. Now, we and other groups sued that rule and the federal court threw it out in 2014.

That is what led the Obama administration to put out the rule that just came out. Now, compared to the Bush rule, this is better, but – particularly with regards to it not having a real buffer – it could have been much better. What the rule itself would do – it's actually a modest step forward. The positive things it does is require improved baseline monitoring and data collection, both from the chemical side and the biological side of what the impacts of mountaintop removal coal mining are in the region and hence would allow communities access to information about what is in their water, which they don't have today. The other improvement that it has is a requirement that the companies have to restore the stream adequate enough to restore stream function; that's primarily through having enough of a financial kind of bonding requirement that they can afford to do that.

Unfortunately, this is not a very strong rule. The Obama administration kind of left a lot of things on the table in this rule, as well, and most notable I think is that while it still has what's called a stream buffer zone, it's really a buffer in name only, because the industry is still going to be allowed to do valley fills within the buffer. And instead of having the Office of Surface Mining over at [the] Interior [Department] impose clear requirements to protect the streams from mining, it leaves it to the states to fill in the blanks, which we know most of the mountaintop states aren't likely to be very vigorous about that.

BETWEEN THE LINES: So, the new regulation is far from perfect, but better than what came before. But Marty Hayden, isn't it true that Congress can undo regulations finalized within a certain number of days of the end of a president's term, and this one falls within that time period?

MARTY HAYDEN: Yes. It is called the Congressional Review Act, which allows Congress to pass a resolution of disapproval and veto in this case, a rule, and if the president signs that veto, then the rule is gone – and at the beginning of a new Congress, it's anything that had not been published and transmitted to Congress within 60 legislative days of the end of the session, which this rule obviously, having just come out in December, would be. Mitch McConnell has already said he would do that. Now, the kicker with the Congressional Review Act isn’t just that it can veto the rule, but it prohibits the agency from producing a substantively similar rule in the future without Congress' approval. "Substantively similar" has never been defined by the courts; it's never been challenged in the courts. At some point, there will be a case that goes forward to define what that really means.

BETWEEN THE LINES: In the end, whether this rule is repealed or not, how much difference will it make?

MARTY HAYDEN: This rule – plus, more importantly, I think, the ability to revisit this rule in a future administration – is very important. Mountaintop removal – it's not just that we're blowing up mountains and causing deforestation and burying headwater streams. We're hurting people, that [it is] a tremendous source of toxic pollution both in water and air that is hurting the people in the communities that surround these facilities. There are numerous scientific studies over the last, say, six years, that it's a growing body of evidence that connects mountaintop removal with elevated rates of cancer, kidney disease, birth defects, cardiovascular and pulmonary disease and other health problems. This is real, so controlling the pollution that's allowed to leave these sites at the end of the day is really important. And while this rule may not go far enough, we sure wouldn’t want to lose the ability to do a strong rule in the future.

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