Court strikes down Bush-era stream rule

A federal court yesterday scrapped the so-called Stream Buffer Zone Rule promulgated under President George W. Bush to govern strip-mining activities.

Environmentalists restarted litigation against the rule last year amid federal Office of Surface Mining delays in developing a substitute, called the Stream Protection Rule.

Yesterday, U.S. District Court for the District of Columbia Senior Judge Barbara Rothstein, a Democratic appointee, struck down the SBZ rule because OSM had failed to consult with the Fish and Wildlife Service before issuing the new standards.

OSM officials relied, at least in part, on a 1996 biological opinion by FWS when they decided not to engage in interagency consultations. Rothstein deemed that "arbitrary and capricious."

Rothstein, echoing environmental groups, said the 1996 biological opinion did not include new information about the effects of strip mining, especially when it came to informing a rule issued more than a decade later.


"Faced with clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality and all living biota, OSM's determination that the revisions to the stream protection rule encompassed by the 2008 Rule would have no effect on threatened and endangered species or critical habitat was not a rational conclusion," Rothstein wrote in her opinion.

Deborah Murray, senior attorney at the Southern Environmental Law Center, who represented plaintiff National Parks Conservation Association, called yesterday's ruling "a significant victory for efforts to protect the beautiful and ecologically diverse waterways of Appalachia."

The National Parks Conservation Association also wanted Rothstein to invalidate the 1996 biological opinion and order OSM to initiate formal consultation with FWS on its rulemaking.

Even though Justice Department attorneys, representing the Obama administration, agreed with striking down the rule, they did not think the judge should touch the biological opinion.

Yesterday, Rothstein sided mostly with the administration, saying that striking down the 2008 rule plus calling OSM reliance on the biological opinion arbitrary and capricious was remedy enough.

The National Mining Association, which intervened in the case, did not think Rothstein needed to scrap the rule. During oral arguments last month, NMA attorney Kirsten Nathanson with Crowell & Moring LLP said the court could send the rule to OSM for corrections if any were necessary.

NMA spokesman Luke Popovich this morning called Rothstein's ruling "obviously very disappointing" but said it was too early to say whether the industry group would appeal.

Rothstein rendered moot a parallel case by a group of environmental organizations, including the Sierra Club and Earthjustice, because of her decision to scrap the SBZ rule. Still, her decision is essentially what the groups wanted.

"We're glad to see it struck from the books and gone as the law of the land," said Earthjustice attorney Neil Gormley. "Good riddance to a harmful midnight rule that hurts communities and waterways."


The judge's decision to scrap the rule and have OSM revert to standards issued under President Reagan will have little practical enforcement effect.

Because the Obama administration dislikes the 2008 rule, OSM has not pushed states to implement its requirements. Instead, the agency is only applying the SBZ rule in limited jurisdictions that don't have their own coal strip mining oversight programs.

OSM's effort to replace the SBZ rule with the Stream Protection Rule has not been without controversy, especially with pro-coal lawmakers accusing the agency of threatening to jeopardize jobs.

Last year, the Interior Department's Office of Inspector General said OSM had pressed former contractors to change the way they calculated job loss numbers after after damaging economic reports surfaced.

However, the OIG investigation, contrary to claims by skeptical lawmakers, said it had found no evidence that political concerns drive OSM's actions (Greenwire, Jan. 9).

This week, Steven Gardner, CEO of ECSI LLC, one of those former contractors, released a written response to the OIG's report and claims of shoddy work.

Gardner wrote that the new rule's environmental impact statement has yet to be released, "which confirms the fact that adequate time had not been provided by OSM for the first contract."

He added that "the statements of OSM employees that the work product was inferior did not take into account their own work and their own unachievable deadlines."

Gardner also appeared to lament the lack of consequences for OSM workers and agency Director Joseph Pizarchik for problems with the rulemaking.

"Also interesting is how many of the people who were in the OSM management of the project have moved on elsewhere," he wrote. "There are still a lot of unanswered questions."

One consequence has been strong congressional oversight, mainly by Republicans on the House Natural Resources Committee. Last year, they approved legislation, H.R. 2824, by Rep. Bill Johnson (R-Ohio), to block the new OSM rulemaking and push enforcement of the SBZ rule.

A Johnson spokesman said this morning that staffers were evaluating the Rothstein decision's effect, if any, on the language of the legislation.

Other litigation

For years, environmentalists and the Obama administration have been in a tug-of-war with coal mining companies and supportive lawmakers over mountaintop-removal mining oversight and the practice's potential effects.

Just this week, a group of researchers published an article in the peer-reviewed Journal of Exposure Science and Environmental Epidemiology that said the mining industry may be at fault for particulate matter pollution and associated negative health effects.

Former West Virginia University researcher Michael Hendryx, now a health science professor at Indiana University, who has been a force in new research on mining's effects, co-authored the study.

The mining industry, however, argues that the studies have not proved a causal link between mining and negative health effects. And they take issue with the Obama administration's efforts to scrutinize and slow down permitting.

Earlier this month, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held oral arguments on a case by NMA and states, including Kentucky and West Virginia, against Obama administration coal mining decisions.

At issue was an appeal by environmental groups and the administration of a lower court ruling, which deemed a guidance document and enhanced coordination scheme illegal (Greenwire, Feb. 10).

In another key case, NMA and a number of industry groups want the Supreme Court to take on the issue of whether it was lawful for U.S. EPA to effectively scrap an Army Corps of Engineers strip mining permit years after that agency had made its decision. An appeals court ruled in EPA's favor last year.

Arch Coal Inc., the company wanting to build the large Spruce coal strip mine in West Virginia, filed its request with the Supreme Court last November.

So far, the case has centered on whether EPA has the power to retroactively withdraw parts of the Army Corps' permits. Pending is an Arch challenge to the agency's action itself.

Asking the Supreme Court not to take the case, Justice Department attorneys said the attention should be on that part of the litigation and not on its veto power.

"Contrary to petitioner's suggestion," they wrote, "the mere possibility that EPA's withdrawal power could be exercised unreasonably is no reason to conclude that the power does not exist."

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