Ohio Leading 13-State Lawsuit Against Federal Mining Rule

Ohio Attorney General Mike DeWine is co-leading a 13-state lawsuit against the federal government over a federal mining legislation called the "Stream Protection Rule." The rule looks to limit the harm done to local streams by mining operations, like mountaintop removal. DeWine believes the legislation is abusive and illegal.

The legislation forces mining companies to mitigate their impact on the surrounding environment, with a particular focus on how they effect water sources. It includes regulations for how mining companies test and monitor nearby streams and rules for how they have to restore any damage they may do to the area. It also forces mining companies to protect endangered species that may be impacted by changes in the local ecology. A link to the full rule is at the bottom of this article.

“This overreaching, last gasp Obama Administration regulation goes far beyond what the law permits,” DeWine said in a statement. “It exceeds the power Congress has given to federal regulators and ignores the authority given to the states. It would have a disastrous effect on Ohio coal miners, their families, and their communities.”

The lawsuit claims that the Office of Surface Mining, a division of the US Department of the Interior, didn't do the proper legwork in speaking with the various states that would be impacted. The suit also claims that when the office did speak with these states, it ignored very vocal protests. The agency also moved to make the rule effective on Jan. 19, the eve of the upcoming change in presidential administrations.

DeWine says, in the lawsuit, that Stream Protection Rule violates the Surface Mining Control and Reclamation Act of 1977 and substitutes a federal, one-size- fits-all rule in its stead. Further, the lawsuit argues that the primary burden of regulating coal mining operations should fall on the states, not the federal government.

The lawsuit also claims that in the original Surface Mining Control and Reclamation Act, there was an understanding that there was a need to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy.” That argument would appear to mean that DeWine and the 12 other attorneys general feel the Stream Protection Rule does not properly accommodate the need for coal as an essential energy.

The lawsuit asks a U.S. District Court to vacate the rule and force the Office of Surface Mining and the Department of the Interior to redo the legislation.

A spokesperson for the Office of Surface Mining said the agency does not comment on pending litigation.

According to the US Energy Information Administration, coal accounted for about 33 percent of all American electricity in 2015. Natural gas also produced 33 percent, nuclear power provided 20 percent, and the rest of the energy came from a variety of sources, including hydropower, biomass, solar, wind and geothermal.

The following states are participating in the lawsuit: Ohio, West Virginia, Alabama, Alaska, Arkansas, Colorado, Indiana, Kentucky, Missouri, Montana, Texas, Utah and Wyoming.

The lawsuit isn't the only threat to the new rule. President-elect Donald Trump has already promised to undo the "Stream Protection Rule" on his transition team's website. The rule is described there as part of a "war on coal."

Congressional Republicans have also protested the enactment of the rule, calling it an unnecessary use of federal time and money, the Hill reports.

Here is part of the executive summary of the Stream Protection Rule, which outlines the seven major elements of the legislation:

First, the rule defines the term “material damage to the hydrologic balance outside the permit area” and requires that each permit establish the point at which adverse mining-related impacts on groundwater and surface water reach an unacceptable level; i.e., the point at which adverse impacts from mining would cause material damage to the hydrologic balance outside the permit area.

Second, the rule sets forth how to collect adequate premining data about the site of the proposed mining operation and adjacent areas to establish a comprehensive baseline that will facilitate evaluation of the effects of mining operations.

Third, the rule outlines how to conduct effective, comprehensive monitoring of groundwater and surface water during and after both mining and reclamation and during the revegetation responsibility period to provide timely information documenting mining-related changes in water quality and quantity. Similarly, the rule addresses the need to require monitoring of the biological condition of perennial and certain intermittent streams during and after mining and reclamation to evaluate changes in aquatic life. Proper monitoring will enable timely detection of any adverse trends and allow timely implementation of any necessary corrective measures.

Fourth, the rule promotes the protection or restoration of perennial and intermittent streams and related resources, especially the headwater streams that are critical to maintaining the ecological health and productivity of downstream waters.

Fifth, the rule ensures that permittees and regulatory authorities make use of advances in information, technology, science, and methodologies related to surface and groundwater hydrology, surface-runoff management, stream restoration, soils, and revegetation, all of which relate directly or indirectly to protection of water resources.

Sixth, the rule ensures that land disturbed by surface coal mining operations is restored to a condition capable of supporting the uses that it was capable of supporting before mining or to higher or better uses of which there is reasonable likelihood. Soil characteristics and the degree and type of revegetation have a significant impact on surface-water runoff quantity and quality as well as on aquatic life and the terrestrial ecosystems dependent upon perennial and intermittent streams. The rule also requires use of native species to revegetate reclaimed mine sites unless and until a conflicting postmining land use, such as intensive agriculture, is implemented.

Seventh, the rule updates measures to protect threatened and endangered species and designated critical habitat under the Endangered Species Act of 1973. (2) It also better explains how the fish and wildlife protection and enhancement provisions of SMCRA should be implemented.

You can read the full Stream Protection Rule here.

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