H.J.Res. 16: Disapproving a rule submitted by the Department ...
... of the Interior known as the “Stream Protection Rule”.
The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 4, 2017.
Nullifies the Stream Protection Rule submitted by the Department of the Interior's Office of Surface Mining Reclamation and Enforcement. The rule addresses the impacts of surface coal mining operations on surface water, groundwater, and the productivity of mining operation sites.
Text of bill:
The Democommies would have us believe that the “Stream Protection Rule” is all about protecting the environment from the evil coal industry, but it's just not that simple. There's more at stake than the environment and the coal industry. The Rule is part of the ongoing attack on our Republic form of government, as the following article demonstrates:
Continuing Federalism Issues Emerge in Challenges to Stream Protection Rule
January 19, 2017
Recently, the states and federal agencies have clashed in a number of environmental rulemakings and subsequent litigation over those rules. These disagreements have raised a host of important legal and policy questions, including the proper balance of power between the states and the federal government and the communication process and overall relationship between the states and federal agencies. Recently filed litigation challenging the Stream Protection Rule, 81 Fed. Reg. 93,066 (Dec. 20, 2016), would prompt judicial review of many of these issues. But the likelihood of administrative or congressional action on this rule (through the Congressional Review Act) could preclude judicial input on these questions for now. If the rule is ultimately withdrawn or overturned, the manner in which it is may also present important federalism questions. Further complicating this process are two motions to intervene in two of these cases, filed by several environmental groups to defend the final Stream Protection Rule from being vacated or weakened.
On January 17, 2017, a coalition of thirteen states (OH, WV, AL, AK, AR, CO, IN, MO, MT, TX, UT, WY, KY) filed a complaint against the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM), challenging the Stream Protection Rule. This rule revises OSM’s regulations implementing the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Throughout the rulemaking process, this rule has been subject to controversy concerning both its content and OSM’s procedure for developing it and communicating with states. Both Congress and the new presidential administration have identified this rule as one they will seek to overturn.
To date, the state coalition complaint is the third one challenging the Stream Protection Rule. The other challenges were filed in December separately by North Dakota and Murray Energy Corporation. Though the focus of each complaint is slightly different, each of them brings claims for violations of SMCRA, the Administrative Procedure Act (APA), and the US Constitution. Many of these arguments present direct or indirect federalism issues. Like many environmental statutes, SMCRA uses a cooperative federalism structure where the federal government establishes minimum standards and states are thereafter primarily in charge of implementing and enforcing them. Hodel v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 289 (1981). SMCRA particularly emphasizes the authority of states; once a state program that regulates surface coal mining and reclamation operations has been federally approved, the state has primary jurisdiction (primacy) for enforcing SMCRA within its borders, using the federally approved state laws and regulations.
The state coalition complaint presents an additional argument focused on the role of states in OSM’s process for developing and finalizing the Stream Protection Rule. The thirteen states, all of which are primacy states, allege that OSM did not communicate enough with them. Specifically, the states allege that OSM violated (1) the National Environmental Policy Act because it failed to meaningfully engage with cooperating state agencies, and (2) the Consolidated Appropriations Act of 2016 because it failed to provide all relevant documents to the states, conduct more meetings with the states, and reengage with the states before finalizing the rule.
Although OSM responded to comments from states on these matters when it issued the final rule, 81 Fed. Reg. at 93,071, it may not respond to these charges in litigation because the rule may be withdrawn or overturned by Congress or the new administration. This litigation would be stayed, settled, or mooted by these actions. The way in which the Stream Protection Rule is withdrawn or overturned will have federalism implications. If the rule is remanded back to the agency (instead of overturned by Congress), the substantive outcome may produce the federalism realignment the plaintiffs have sought. An interesting question may be whether remand to OSM also produces the additional communication and inclusion in the decision making process that the coalition states seek, both on this and future rulemakings.
OSM’s response to these cases may also be influenced by efforts by several environmental groups to intervene in defense of the Stream Protection Rule. On January 18, 2017, several environmental groups filed motions to intervene to prevent vacatur or weakening of the standards in the Stream Protection Rule based on the claims brought by North Dakota and Murray Energy. If OSM seeks to settle these cases, the timing of settlement discussions with the plaintiffs and/or the terms of the settlement may take into account these intervention motions and the likely opposition by the environmental groups to changing the final Stream Protection Rule.
Here's you a little background information on the Rule in question:
The ‘‘Stream Protection Rule’’ published at 81 Fed. Reg. 93066 (December 20, 2016) states the following:
We have revised our regulations to define ‘‘material damage to the hydrologic balance outside the permit area’’ and require that each permit specify the point at which adverse mining-related impacts on groundwater and surface water would reach that level of damage; collect adequate premining data about the site of the proposed mining operation and adjacent areas to establish an adequate baseline for evaluation of the impacts of mining and the effectiveness of reclamation; adjust monitoring requirements to enable timely detection and correction of any adverse trends in the quality or quantity of surface water and groundwater or the biological condition of streams; ensure protection or restoration of perennial and intermittent streams and related resources; ensure that permittees and regulatory authorities make use of advances in science and technology; ensure that land disturbed by mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before mining; and update and codify the requirements and procedures for protection of threatened or endangered species and designated critical habitat. ....
DATES: This rule is effective January 19, 2017.
FOR FURTHER INFORMATION CONTACT: For the final rule: Dennis G. Rice, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202–208–2829. Kathleen G. Sheehan, Esq., Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 3 Parkway Center, 2nd Floor, Pittsburgh, Pennsylvania 15220. Telephone: 412–937–2829.
For the final environmental impact statement: Robin T. Ferguson, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202–208–2802.
For the final regulatory impact analysis: Mark Gehlhar, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202–208–2716.
For information collection matters:
John A. Trelease, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., Washington, DC 20240. Telephone: 202–208–2716. SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Why are we revising our regulations?
III. What opportunity did we provide for public comment on the proposed rule and supporting documents?
"The Interior Department’s Office of Surface Mining Reclamation and Enforcement estimated the rule will cost the industry $81 million a year on average between 2020 and 2040 and projects that coal prices will rise 1.3 percent from Central Appalachia and the Illinois Basin, and 0.2 percent from the Powder River Basin in Montana and Wyoming. The agency also projects that the rule will lead to an average annual employment decrease of 124 full-time coal-production jobs between 2020 and 2040, while the implementation of the rule will require an annual employment increase of 280 full-time jobs, leading to a net gain of 156 full-time jobs."