The Stream Protection Rule was a United States federal regulation issued by the Office of Surface Mining Reclamation and Enforcement that went into effect on January 19, 2017.[1] These regulations implement Title V of the 1977 Surface Mining Control and Reclamation Act (SMCRA). The original regulations had been issued in 1979 and were updated in 1983. Litigation over mountaintop removal mining required changes to the regulations, which were issued in 2008. These regulations were in turn struck down by a judge after litigation by environmental groups. The new regulations, the Stream Protection Rule, were issued in January 2017.
They were a topic in the 2016 elections, with Republican candidates for federal office saying that they would strike the regulations down if they would be elected. In February 2017, the Republican-controlled Congress, through the Congressional Review Act, passed a bill (a "resolution of disapproval") to revoke the rule. President Donald Trump signed the legislation, repealing the rule.[2] This left the status of regulations implementing the SMCRA unclear.
History
The Stream Protection Rule updated the regulations issued by the Office of Surface Mining Reclamation and Enforcement (OSMRE) to implement Title V of the 1977 Surface Mining Control and Reclamation Act (SMCRA), the focus of which were the conditions for issuing permits to begin a mining operation. The regulations had been issued in 1979, updated in 1983, and litigation over mountaintop removal mining required changes to the regulations, which were issued in 2008.[3] Environmental groups challenged the new rules in court and in 2014 a federal court struck them down, and the Obama administration began working on new rules.[3]:6
In a joint hearing in December 2015, by the House Committee on Oversight and Government Reform and Subcommittee on the Interior, U.S. Representative Brenda Lawrence stated in the reasoning to the Stream Protection Rule that previous rules were not developed with current science and have failed to prevent environmental harm.[4] Current evidence has linked coal mining with loss in stream water quality and ecosystem health.[5] State regulatory agencies have rarely enacted policy to regulate impact on streams outside of mining sites.[6]
In July 2015 as part of the development of the new rules, OSMRE published a draft Environmental Impact Statement about the new rules.[7] Pursuant to Executive Order 12898 issued by Bill Clinton, which required federal agencies to take environmental justice (EJ) concerns into consideration when taking regulatory and other actions, and pursuant to the EPA's own guidelines for implementing that order finalized in 1998,[8] the impact statement had a section addressing EJ concerns.[7]:4–317–330 The EPA studied the demographics of 286 coal-producing counties and identified 44 that had significant minority or low-income populations; half of those were in Appalachia.[7]:4–326 The statement predicted that the rules would probably lead to a decrease in coal production, which would lead to a loss of jobs and with respect to minority-owned coal producers (e.g. Native American tribes) this would be a negative socio-economic effect.[7]:4–326 The Statement also offered predictions on the likely effects on public health and safety; biological resources, water resources, and air quality; topography and land use; and recreation in minority and low-income counties, and found that there were likely to be negligible to very beneficial effects in each of those aspects.[7]:4–328–329 The statement also addressed protections for cemeteries and sacred lands on tribal lands.[7]:4–329–430
Part of the work that led to the new rules was a collaboration with the United States Fish and Wildlife Service; the ESA requires federal agencies to consult with the Fish and Wildlife Service to ensure their actions do not jeopardize the continued existence of an endangered or threatened species, or adversely modify critical habitat.[11] The Fish and Wildlife Service published its Programmatic Biological Opinion, and both agencies published a Memorandum of Understanding that described how OSMRE was implementing the findings of the Opinion, on the same day the new rules were published.[12]
Provisions
Following the law being implemented, the Stream Protection Rule aimed to create "balance between environmental protection and the nation's need for coal as a source of energy."[13] To achieve this, the rule included improvements in the protection of water supplies, water quality, streams, fish and other wildlife, and other environmental issues that are harmed by surface coal mining; furthermore, the rule provided mine operators with more regulations that would help avoid water pollution as well as water treatment costs.[13] In addition to these guidelines, the rule also included eradicating water pollution outside of permit areas, requiring thorough data collection for mining operations, protection and restoration of streams, updated guidelines for protecting endangered species, and long-term treatment of unintentional water contamination.[14] Expanding on permits, the rule also guarantees that science and technology are leveraged to analyze the potential harms of mining. It also ensured that lands that are harmed by mining operations can be restored to a condition comparable to its condition before the mining operation was introduced.[13] During the restoration process companies would be required to plant native trees and vegetation.[14] 30% of the rule's provisions were revisions and organizational changes that aimed to help "improve consistency, clarity, accuracy, and ease of use."[13]
Assistant Secretary for Land and Minerals Management, Hon. Janice Schneider testified before a joint House committee hearing stating "Every reclamation practice contained in the proposed rule has been successfully implemented by a mine operator somewhere in the country." and that the rule was based on industry best practice.[4]
The Stream Protection Rule covered waterways near surface coal mining operations in order to avoid pollution of rivers and streams, and also called for the restoration of streams that had been damaged by dangerous, heavy metals like mercury and arsenic.[15] The Rule would have protected an estimated 6,000 miles of streams over the next two decades,[16] by establishing that coal companies were in fact, not allowed to damage the "hydrologic balance" outside their permit area and enforcing a 100-foot buffer around streams to preserve native species.[15]The Interior Department had also said that the rule would protect 52,000 acres of forests as a default of keeping coal mining debris away from nearby waters.[17]
Expected effects and impacts
On January 11, 2017, a report for members and committees of Congress was published by the Congressional Research Service, entitled "The Office of Surface Mining's Stream Protection Rule: An Overview." The report described the history of law, regulation, and litigation that had led to the new rules. The report also summarized a report, Draft Regulatory Impact Analysis of the Stream Protection Rule, that was prepared for the Interior Department's Office of Surface Mining Reclamation and Enforcement. That draft regulatory impact analysis (RIA) outlined the costs of the new rules to the coal mining industry, and provided an overall cost-benefit analysis of the rules.[3] The draft RIA found that "added administrative costs resulting from the rule are expected to be small for industry, adding on average about $0.01 per ton of coal mined", although cost in Appalachia would be expected to be up to $0.04 per ton. Cost for small operators were expected to be higher. The draft RIA cites SMCRA Section 507(c) to assist these operators. The draft RIA expected administrative cost for government to range from $1,830 to $2,546 per mine depending on the region. The draft RIA found that under the proposed rule, coal production would "decrease in aggregate by about 1.9 million tons annually, or approximately 0.2% compared with production expected under the baseline," reflecting mainly substitution of natural gas for coal by U.S. power plants.[3]
The draft RIA also found that the rule would "reduce adverse impacts on the environment and human heath" and that the rule's stream restoration and reforestation provisions would result in an estimated "2,811 acres of forest improved annually and 20 acres of forest preserved annually."[3]
Challenges and overturning
President-elect Trump's pro-coal mining stances promoted during a Republican campaign rally in Louisiana.
Republicans, including Donald Trump, had made reducing regulation, and especially environmental regulation, a key message in their campaigns in 2016, and Paul Ryan had issued a plan called "Better Way" that laid out methods to reduce regulation, including use of the Congressional Review Act, which allows Congress and the President to force federal agencies to retract regulations that they judge go beyond what the law requires.[18][19] Senate Majority Leader Mitch McConnell had also claimed that the rule would decrease the number of coal-related jobs.[20]
In early February 2017, Congress voted to use the Congressional Review Act to pass a "resolution of disapproval" to revoke the Stream Protection Rule.[18][22] The resolution to repeal the bill passed in the House by a 228–194 vote and in the Senate by a vote of 54–45, largely on party lines, with Republicans voting in favor and Democrats voting against.[23][24] According to the Center for American Progress, the 27 representatives that sponsored or co-sponsored the review of the rules received nearly $500 million from mining interests in 2016.[25] Trump signed H.J. Res 38 on February 16, 2017, overturning the Stream Protection Rule.[26][27]
When he signed the resolution repealing the rule, Trump predicted that striking down the rule would save thousands of U.S. mining-related jobs.[20][26][28][29] Republican Bill Johnson, the U.S. representative for Ohio's 6th congressional district and sponsor for the disapproval measure, stated, "Make no mistake about it, this Obama administration rule is not designed to protect streams. Instead, it was an effort to regulate the coal mining industry right out of business."[30]
Effects of revocation
Subsequent to the revocation of the Stream Protection Rule by the Trump administration, many scientists, when interviewed, said that it would have had an insignificant impact on the activities of coal companies.[31]
Moreover, the US energy industry had generally reduced its use of coal in favor of cheaper natural gas and to a lesser extent renewables, and analysts said that even if the Stream Protection Rule had made coal more expensive for them, it would not have had much of an effect on the industry; its revocation meant little to them as well.[32]
The revocation of these regulations left unclear what regulation would be used to implement the Surface Mining Control and Reclamation Act.[33]
Mine reclamation is the process of modifying land that has been mined to ecologically functional or economically usable state. Although the process of mine reclamation occurs once mining is completed, the planning of mine reclamation activities occurs prior to a mine being permitted or started. Mine reclamation creates useful landscapes that meet a variety of goals ranging from the restoration of productive ecosystems to the creation of industrial and municipal resources. In the United States, mine reclamation is a regular part of modern mining practices. Modern mine reclamation reduces the environmental effects of mining.
Mountaintop removal mining (MTR), also known as mountaintop mining (MTM), is a form of surface mining at the summit or summit ridge of a mountain. Coal seams are extracted from a mountain by removing the land, or overburden, above the seams. This process is considered to be safer compared to underground mining because the coal seams are accessed from above instead of underground. In the United States, this method of coal mining is conducted in the Appalachian Mountains in the eastern United States. Explosives are used to remove up to 400 vertical feet of mountain to expose underlying coal seams. Excess rock and soil is dumped into nearby valleys, in what are called "holler fills" or "valley fills".
The Surface Mining Control and Reclamation Act of 1978 (SMCRA) is the primary federal law that regulates the environmental effects of coal mining in the United States.
The Office of Surface Mining Reclamation and Enforcement (OSMRE) is a branch of the United States Department of the Interior. It is the federal agency entrusted with the implementation and enforcement of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), which attached a per-ton fee to all extracted coal in order to fund an interest-accruing trust to be used for reclamation of abandoned mine lands, as well as established a set environmental standards that mines must follow while operating, and achieve when reclaiming mined land, in order to minimize environmental impact. OSMRE has fewer than 500 employees, who work in either the national office in Washington, DC, or of the many regional and field offices.
Howard Morgan Griffith is an American lawyer and politician who has been the U.S. representative for Virginia's 9th congressional district since 2011. The district covers a large swath of southwestern Virginia, including the New River Valley and the Virginia side of the Tri-Cities. He is a member of the Republican Party and the Freedom Caucus.
An abandoned mine refers to a former mining or quarrying operation that is no longer in use and has no responsible entity to finance the cost of remediation and/or restoration of the mine feature or site. Such mines are typically left unattended and may pose safety hazards or cause environmental damage without proper maintenance. The term incorporates all types of old mines, including underground shaft mines and drift mines, and surface mines, including quarries and placer mining. Typically, the cost of addressing the mine's hazards is borne by the public/taxpayers/the government.
The environmental policy of the United States is a federal governmental action to regulate activities that have an environmental impact in the United States. The goal of environmental policy is to protect the environment for future generations while interfering as little as possible with the efficiency of commerce or the liberty of the people and to limit inequity in who is burdened with environmental costs. As his first official act bringing in the 1970s, President Richard Nixon signed the U.S. National Environmental Policy Act (NEPA) into law on New Years Day, 1970. Also in the same year, America began celebrating Earth Day, which has been called "the big bang of U.S. environmental politics, launching the country on a sweeping social learning curve about ecological management never before experienced or attempted in any other nation." NEPA established a comprehensive US national environmental policy and created the requirement to prepare an environmental impact statement for “major federal actions significantly affecting the quality of the environment.” Author and consultant Charles H. Eccleston has called NEPA the world's “environmental Magna Carta”.
William Leslie Johnson is an American businessman, university administrator and former politician who has served as president of Youngstown State University since 2024. Previously, he was the U.S. representative for Ohio's 6th congressional district from 2011 until 2024. He is a member of the Republican Party.
Coal was discovered in Kentucky in 1750. Since the first commercial coal mine opened in 1820 coal has gained both economic importance and controversy regarding its environmental consequences. As of 2010 there were 442 operating coal mines in the state, and as of 2017 there were fewer than 4,000 underground coalminers.
The Kayenta mine was a surface coal mine operated by Peabody Western Coal Company, a subsidiary of Peabody Energy) on the Navajo Nation in northern Arizona from 1973 to 2019. About 400 acres were mined and reclaimed each year, providing about 8 million tons of coal annually to the Navajo Generating Station.
The Preventing Government Waste and Protecting Coal Mining Jobs in America is a bill that would amend the Surface Mining Control and Reclamation Act of 1977 to require state programs for regulation of surface coal mining to incorporate the necessary rule concerning excess spoil, coal mine waste, and buffers for perennial and intermittent streams published by the Office of Surface Mining Reclamation and Enforcement on December 12, 2008.
Water in Arkansas is an important issue encompassing the conservation, protection, management, distribution and use of the water resource in the state. Arkansas contains a mixture of groundwater and surface water, with a variety of state and federal agencies responsible for the regulation of the water resource. In accordance with agency rules, state, and federal law, the state's water treatment facilities utilize engineering, chemistry, science and technology to treat raw water from the environment to potable water standards and distribute it through water mains to homes, farms, business and industrial customers. Following use, wastewater is collected in collection and conveyance systems, decentralized sewer systems or septic tanks and treated in accordance with regulations at publicly owned treatment works (POTWs) before being discharged to the environment.
The Clean Water Rule is a 2015 regulation published by the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to clarify water resource management in the United States under a provision of the Clean Water Act of 1972. The regulation defined the scope of federal water protection in a more consistent manner, particularly over streams and wetlands which have a significant hydrological and ecological connection to traditional navigable waters, interstate waters, and territorial seas. It is also referred to as the Waters of the United States (WOTUS) rule, which defines all bodies of water that fall under U.S. federal jurisdiction. The rule was published in response to concerns about lack of clarity over the act's scope from legislators at multiple levels, industry members, researchers and other science professionals, activists, and citizens.
The environmental policy of the Donald Trump administration represented a shift from the policy priorities and goals of the preceding Barack Obama administration. Where President Obama's environmental agenda prioritized the reduction of carbon emissions through the use of renewable energy with the goal of conserving the environment for future generations, the Trump administration policy was for the US to attain energy independence based on fossil fuel use and to rescind many environmental regulations. By the end of Trump's term, his administration had rolled back 98 environmental rules and regulations, leaving an additional 14 rollbacks still in progress. As of early 2021, the Biden administration was making a public accounting of regulatory decisions under the Trump administration that had been influenced by politics rather than science.
Fossil fuel regulations are part of the energy policy in the United States and have gained major significance with the nation's strong dependence on fossil fuel-based energy. Regulatory processes are established at the federal and state level due to the immense economic, socio-political and environmental impact of fossil fuel extraction and production. Over 80% of the United States' energy comes from fossil fuels such as coal, natural gas, and oil. The Bush administration was marked by the Energy Policy Act of 2005, which provided a monetary incentive for renewable energy adoption and addressed the issue of climate change. The Obama administration was made up of advocates for renewable energy and natural gas, while Donald Trump built his campaign on promises to revive the coal industry.
Environmental justice and coal mining in Appalachia is the study of environmental justice – the interdisciplinary body of social science literature studying theories of the environment and justice; environmental laws, policies, and their implementations and enforcement; development and sustainability; and political ecology – in relation to coal mining in Appalachia.
Environmental issues in Appalachia, a cultural region in the Eastern United States, include long term and ongoing environmental impact from human activity, and specific incidents of environmental harm such as environmental disasters related to mining. A mountainous area with significant coal deposits, many environmental issues in the region are related to coal and gas extraction. Some extraction practices, particularly surface mining, have met significant resistance locally and at times have received international attention.
Andrew R. Wheeler is an American attorney who served as the 15th administrator of the United States Environmental Protection Agency (EPA) from 2019 to 2021. He served as the deputy administrator from April to July 2018, and served as the acting administrator from July 2018 to February 2019. He has been a senior advisor to Governor of Virginia Glenn Youngkin since March 2022. He previously worked in the law firm Faegre Baker Daniels, representing coal magnate Robert E. Murray and lobbying against the Obama Administration's environmental regulations. Wheeler served as chief counsel to the United States Senate Committee on Environment and Public Works and to the chairman U.S. senator James Inhofe, prominent for his rejection of climate change. Wheeler is a critic of limits on greenhouse gas emissions and the Intergovernmental Panel on Climate Change.
J. Steve Gardner is a coal industry consultant and a former nominee for Administrator Office of Surface Mining Reclamation and Enforcement (OSMRE)
The RECLAIM Act was simultaneously introduced in the U.S. Senate and U.S. House of Representatives on March 27, 2017 by Senator Mitch McConnell (R-KY) and Representative Hal Rogers (R-KY-5). The bill authorizes the use of funds generated by Surface Mining Control and Reclamation Act of 1977 (SMCRA) to be invested in communities adversely affected by the cessation of mining operations in the area.
1 2 Examining the Stream Protection Rule United States. Congress. House. Committee on Oversight and Government Reform. Subcommittee on the Interior. December 8, 2015
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