Congress moves to reject Obama mining rule changes

CHRIS DORST | Gazette-Mail file photo
A mountaintop removal mine site in Southern West Virginia in 2009.

Congress on Wednesday evening was headed toward fairly quick action to reject a late-term effort by the Obama administration to replace a controversial stream “buffer zone” rule with a collection of requirements that coal operators better monitor water quality, try to avoid damage to streams, and improve the restoration of waterways harmed by mountaintop removal and other types of mining.

The House passed, and the Senate was expected to pass later in the evening, a resolution to block the U.S. Office of Surface Mining’s “stream protection rule” that was issued by the Interior Department agency in late December.

West Virginia Republican Reps. David McKinley, Evan Jenkins and Alex Mooney all voted for the resolution blocking the OSM rule. Sens. Joe Manchin, D-W.Va., and Shelley Moore Capito, R-W.Va., were both expected to vote for the resolution as well.

Supporters of the resolution portrayed the action as a victory over what they called the Obama administration’s efforts to destroy the nation’s coal industry, while opponents said the OSM rule was a much-needed effort to reduce pollution from mining and protect public health in coalfield communities.

The vote is among the first in a series of efforts by the Republican leadership to deploy a little-used law, the Congressional Review Act, to dismantle regulations that were recently approved by executive branch agencies. That law, successfully used only once since it was passed in 1996, allows lawmakers to dispense with some procedural hurdles — such as filibuster in the Senate — and also prohibits the agency involved from issuing another similar rule unless specifically authorized to do so by a subsequent law.

“Regulatory safeguards that keep our water safe from toxic pollution are crafted using a lengthy democratic process and based on the best current science,” said Trip Van Noppen, president of the environmental group Earthjustice. “Dismantling them using the Congressional Review Act fundamentally undermines the very goals of our environmental laws by trying to cripple future attempts to enforce protections for our air, water and lands.”

The National Mining Association issued a statement that said, “The American coal mining community applauds today’s House vote to void this unnecessary and costly regulation.”

Obama administration officials had portrayed their new rule as providing “common sense, straight-forward reforms” that would curb mining damage, while having “minimal” economic impacts on the mining industry, coalfield economies and local governments that depend on coal taxes to provide services.

During the House floor debate, McKinley, Jenkins and other Republicans described the OSM rule as a final effort by President Barack Obama to regulate the coal industry out of existence.

“This war on coal has got to stop and I think this election set the tone for that,” McKinley said.

Jenkins said that West Virginia “can’t afford to lose any more jobs” in the coal industry.

Rep. Raul Grijalva, D-Ariz., responded — as have most energy experts — that it was really free market economics, not government regulations, that have caused the massive downturn in the coal industry, which has hit West Virginia especially hard.

“If there is a war on coal, it is being led by the natural gas industry, which produces a better product at a lower cost,” Grijalva said.

Rep. John Yarmuth, D-Ky., challenged lawmakers who wanted to block the stream rule to take a drink from a bottle of orange-colored water he said came from the mining-damaged well of a Pike County, Kentucky, family. No Republican accepted the offer, according to Yarmuth’s office.

Earlier on Wednesday, Yarmuth had re-introduced legislation aimed at stopping new mountaintop removal permits from being issued while federal experts further examine the health consequences of the practice. A series of peer-reviewed studies has already found that residents living near mountaintop removal mines face greater risk of cancer, birth defects and premature death.

Ironically, rejection of the Obama administration’s stream protection rule would revert OSM to the 1983 version of a regulation known as the buffer zone. That rule is more restrictive in many ways than the Obama rule, though federal and state agencies have historically not enforced its prohibition on mining within 100 feet of streams or putting valley fill waste piles in perennial or intermittent streams.

“The plain language of the 1983 rule bans valley fills and other harmful mining practices within 100 feet of a perennial or intermittent stream, and we will be working hard to make sure it’s enforced,” said Jessica Hodge, a spokeswoman for Earthjustice.

President Donald Trump is certain to sign the resolution blocking the Obama stream rule, and would certainly not enforce the letter of the 1983 rule. As part of his promise to get rid of regulations he says have hurt various industries, Trump earlier this week issued an executive order that forbids agencies from implementing new regulations unless they do away with two regulations for every new one they write.

Reach Ken Ward Jr. at, 304-348-1702 or follow @kenwardjr on Twitter.

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