Court rejects Interior move to revoke Bush mountaintop rule

A federal judge ruled today that the Obama administration cannot revoke changes made by the Interior Department under President George W. Bush to the rule aimed at protecting rivers and streams from mountaintop- and other surface-mining activities.

The Obama administration had asked a federal district court in April to vacate changes made by Interior's Office of Surface Mining to the "stream buffer zone" rule finalized in the waning days of the Bush administration.

Interior wanted the court to remand the rule to the department so it could develop a new update to the law, but Judge Henry Kennedy Jr. of U.S. District Court for the District of Columbia rejected the motion today, siding with the National Mining Association's contention that such a reversal would violate the Administrative Procedures Act (APA) for repealing a federal rule.

The government had argued that the court should vacate and remand the rule to the department because Interior Secretary Ken Salazar admitted there were legal deficiencies in the Bush rule and that granting the motion would not result in any disruptive consequences, but Kennedy disagreed.

"The NMA has the better argument that granting the federal defendants' motion would wrongfully permit the federal defendants to bypass established statutory procedures for repealing an agency rule," Kennedy wrote in his five-page decision. "The APA requires government agencies to follow certain procedures, including providing for notice and comment, before enacting or amending a rule."


The 1983 buffer rule requires coal operators to keep 100 feet of space between streams and mining operations. The Bush administration changes extended the rule to all bodies of water but exempted certain activities common to mountaintop mining, including permanent spoil fills and coal-waste disposal facilities, a change that Salazar said "simply does not pass the smell test."

"I have closely reviewed the previous administration's mountaintop coal mining rule, which allowed coal mine operators to dump mountain fill into stream beds, and have determined that it is bad public policy," Salazar said in April as he announced he would move to revoke the Bush-era changes (E&ENews PM, April 27).

Salazar said then his department would move quickly to write a new rule that is similar to the 1983 version but includes improvements learned over the last 25 years.

Interior spokeswoman Kendra Barkoff said the department is reviewing the ruling. "This administration has shown it is determined to improve mining practices, and we will do so within the context of the court's ruling," she said in an e-mail.

Salazar's April announcement was one of several moves by the Obama administration to re-examine mountaintop mining, in which the tops of mountains are blasted to expose coal seams and spoils dumped in valleys and streams.

NMA spokesman Luke Popovich said today's ruling demonstrates the administration cannot "capriciously" change federal mining rules without public involvement.

"We're delighted with it as every time when our opinion is vindicated, especially with a ruling like this that has broader implications for mining," Popovich said. "To the extent that EPA and other federal agencies may be examining current rules to alter them ... they presumably would have to look carefully at today's ruling."

It is unlikely that today's action will effect coal production because the guidance on how to implement the Bush rule has not been given to states, which are responsible for issuing coal mining permits.

Many environmentalists said in April that Interior's move to revoke the Bush-era changes to the buffer rule was only a partial victory because it has been rarely enforced.

While disappointed with today's decision, environmentalists said it should serve as a sign to the administration that it will have to be more aggressive on the issue, including conducting a comprehensive rulemaking for not only a new buffer zone rule but other mountaintop mining issues.

"We don't know if this is a right ruling or not, but this ruling could provide an opportunity for President Obama's administration to give us a better rule to protect our streams," said Janet Keating, executive director of the Ohio Valley Environmental Coalition.

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