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Why Congress just killed a rule restricting coal companies from dumping waste in streams

The stacks from the Gavin coal burning power plant tower in Cheshire, Ohio.
Benjamin Lowy | Getty Images

With everything that Republicans want to do — repeal Obamacare, overhaul the tax code — it might seem odd that one of Congress' very first acts would be to kill an obscure Obama-era regulation that restricts coal companies from dumping mining waste into streams and waterways.

But that is indeed what's going on. On Thursday, the Senate voted 54-45 to repeal the so-called "stream protection rule" — using a regulation-killing tool known as the Congressional Review Act. The House took a similar vote yesterday, and if President Trump agrees, the stream protection rule will be dead. Coal companies will now have a freer hand in dumping mining debris in streams.

Killing this regulation won't really help Trump fulfill his goal of reversing the coal industry's decline; that decline has more to do with cheap natural gas than anything else. Instead, Republicans are mostly focusing on this rule because they can. Because the stream protection rule wasn't finished until very late in 2016, it's much, much easier to kill than most of the other Obama-era rules around coal pollution. It was an easy target, so long as the GOP acted fast.

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What Obama’s 'stream protection rule' actually does

Coal mining is a messy business. In parts of West Virginia, Kentucky, and Virginia, for instance, mining companies often get at underground coal seams by blowing up the tops of mountains — a process known as mountaintop removal mining. Once that's done, they'll frequently dump the debris into the valleys below, which can contaminate streams and waterways with toxic heavy metals.

Appalachian Voices, an environmental group, estimates that coal companies have buried over 2,000 miles of streams in the region through mountaintop removal mining. And studies have found that when this all debris and waste gets into water supplies, it can have dire health impacts for the people living nearby.

In theory, there's a law to mitigate this. The 1977 Surface Mining Control and Reclamation Act says that companies should not cause "material damage to the environment to the extent that it is technologically and economically feasible." But that language is awfully vague. And the agency responsible for enforcing this law, the Office of Surface Mining Reclamation and Enforcement (OSMRE), hasn't clarified what this language means since publishing a "stream buffer rule" in 1983.


"The rule doesn’t address all the problems with the most destructive mining practices. But it makes it a little bit harder for coal companies to pollute streams. And it makes it a little easier for communities to fight back against mines if they don’t want them." -Thom Kay, Appalachian Voices

In theory, there's a law to mitigate this. The 1977 Surface Mining Control and Reclamation Act says that companies should not cause "material damage to the environment to the extent that it is technologically and economically feasible." But that language is awfully vague. And the agency responsible for enforcing this law, the Office of Surface Mining Reclamation and Enforcement (OSMRE), hasn't clarified what this language means since publishing a "stream buffer rule" in 1983.

Community groups and environmentalists had long pushed to update the regulations here, especially since mining practices have changed dramatically over the past three decades and scientists have learned more about the harmful effects of water pollution from coal mining. In 2008, the George W. Bush administration published an update to the "stream buffer rule," but those efforts later got struck down in court for running afoul of the Endangered Species Act.

So enter the Obama administration. Ever since 2009, OSMRE has been trying to update its guidance here. That process involved poring through reams of research on the effects of coal mining on ecosystems, holding endless hearings, talking to various stakeholders, and so on.

The final rule got published on December 19, 2016 — just before Obama left office. And while it's incredibly complex, updating hundreds of older regulations, it basically puts a couple of key restrictions in place for coal companies seeking permits to expand or start new mines in the future:

  1. First, a company that wants to open either a surface or underground mine needs to avoid causing damage to the "hydrologic balance" of waterways outside of its permit area. The rule goes into excruciating detail on what these definitions mean, but it's basically a much stricter limit on dumping waste and debris in surrounding ecosystems.
  2. Second, companies and regulators have to do a baseline assessment of what nearby ecosystems look like before any new mining begins. They then have to monitor affected streams during mining, and the company has to develop a plan for restoring damaged waterways to something close to their natural state after mining is done.

This sounds pretty basic, but there were numerous debates over best how to define "hydrologic balance," how exactly to monitor waterways, how to deal with the variety of coal industry practices out there, and so on.

In the end, environmentalists certainly weren't thrilled with the rule — many groups didn't think it went far enough to restrict the dumping of debris, and they don't believe coal companies can restore damaged streams fully to their prior state after mining. But on balance, they thought the rule an improvement over the status quo. OSMRE estimated that it would protect an additional 6,000 miles of streams and 52,000 acres of forest.

"The rule doesn't address all the problems with the most destructive mining practices," says Thom Kay of Appalachian Voices. "But it makes it a little bit harder for coal companies to pollute streams. And it makes it a little easier for communities to fight back against mines if they don't want them."


How the stream protection rule became so controversial

But coal companies absolutely loathe this new rule. Coal mining is already facing a brutal decline in Appalachia — partly because the industry is moving West to places like Wyoming, but also because the advent of cheap natural gas has absolutely crushed US demand for coal, causing hundreds of coal power plants to close nationwide. Now miners have to deal with this rule, which imposes new restrictions and makes it more expensive to operate.

The National Mining Association, an industry trade group, says the stream-protection rule could put more than half of the nation's yet-untapped coal reserves off limits to future mining — further crippling a wounded industry. The group would prefer environmental protections be handled at the state level (where, in states like West Virginia and Kentucky, regulators have a much lighter tough). "It's a pure expression of all that ordinary Americans loathe about rule by bureaucracy," writes NMA's Luke Popovich.

Other coal companies, like Ohio-based Murray Energy, complained that the rule could outlaw favorite techniques like longwall mining — which involves using machines with revolving blades to cut coal from an underground seam into slices. "This unlawful and destructive rule is nothing but a thinly veiled attempt to destroy our nation's underground coal mines and put our nation's coal miners out of work," said Robert Murray, the CEO of Murray Energy, after the rule was finished.

OSMRE, for its part, had argued that these worries were (mostly) overblown. The agency pointed out, for instance, that most longwall operations are so deep underground that they wouldn't have much effect on streams above — and hence are unlikely to be affected by the regulations. But the agency did agree that the rule would impose some costs, and it'd likely make certain mining plans uneconomic at the margins. Environmental protection isn't free.

Whatever the precise economic impact, the rule has taken on a life of its own in American politics. On the campaign trail, Donald Trump talked about reviving America's coal industry and ending Obama's "war on coal," blaming rules like this for the industry's decline. After the election, Robert Murray — one of Trump's staunchest supporters — talked about killing the stream protection rule as a top priority. The rule featured prominently on Trump's transition website.



Why it was so easy for Republicans to kill this particular rule

Now, the stream protection rule was hardly the only environmental regulation that the Obama administration slapped on the coal industry. The Environmental Protection Agency has taken sweeping steps to cut air pollution from coal power plants, adding to the industry's woes (especially when cleaner natural gas is so cheap and plentiful).

Trump would love to overturn many those other rules as well. The trouble is that most of them are hard to repeal. He'd have to go through the EPA's rule-making process, which would take years and could be thwarted by lawsuits from environmental groups.

But the stream protection rule was different. Because it took so long to complete, and because it was only finalized in December 2016, it can be easily overturned in the new Congress via the Congressional Review Act (CRA).

The CRA basically says the House and Senate can kill any recently finalized regulation with simple majority votes in both chambers — so long as the president agrees. What counts as "recently finalized" gets complicated and involves counting "legislative days," but Congress can basically vote to overturn any Obama-era regulation that was finished after mid-June 2016 — a list that spans more than 50 major regulations.

The stream protection rule happens to be the one big coal rule vulnerable to the CRA. It's not the biggest problem facing the coal industry, or even the most far-reaching environmental policy around. But it's procedurally simple to repeal, and Democrats in the Senate can't filibuster CRA votes. As long as Republicans moved quickly before the CRA window closed, they could nix it quickly and easily. So that was that. Mining waste became one of the first orders of business in the new Congress.



Further reading

— Here's more detail on how the Congressional Review Act works. Note that Congress is actually killing five different Obama-era regulations this week, including a rule that would require oil companies to disclose payments to foreign governments. (That latter is a rule that new Secretary of State Rex Tillerson once lobbied against.)

— Here's a closer look at why Trump will struggle to save the US coal industry even if he manages to repeal many of Obama's environmental policies. Scrapping the stream protection rule might help boost the bottom lines of some mining companies at the margins, but it's unlikely to reverse the long inexorable downward trend of mining jobs in Appalachia