Well, now that a federal judge has nixed a key component of the Obama administration’s plan to beef up regulation of mountaintop removal, what comes next?
Obama officials certainly aren’t saying, as indicated by the refusal of Interior Department spokeswoman Kendra Barkoff to comment at all beyond this prepared statement on the court ruling:
This administration has said it is determined to improve mining practices and we will do so within the context of the court’s ruling, which we are reviewing.
As you recall, the ruling yesterday by U.S. District Judge Henry H. Kennedy Jr. said Interior Secretary Ken Salazar can’t reverse a Bush administration mining rule change — the one that gutted the stream buffer zone rule — without going through the proper rulemaking process, including public comments, hearings, all that troublesome stuff.
One thing I loved about this situation was how it put the National Mining Association in the position of being the ones arguing for good government (this after eight years of having a seat at the table, in the room, guiding Bush administration policies on mountaintop removal and most other energy issues).
NMA spokeswoman Carol Raulston put it this way:
In determining the federal government cannot arbitrarily strike down a regulation, the court has preserved an open and transparent regulatory process that provides for notice and protects the rights of all interested parties to comment. The court clearly outlined the obligations of government to operate within the scope of duly promulgated regulations and administrative procedures. NMA believes this is an important decision and has application across a broader range of ongoing regulatory activities affecting U.S. mining.
I understand that some environmental groups lawyers were telling administration officials behind the scenes that Salazar was taking the wrong legal steps if he wanted to get rid of the buffer zone changes instituted by the Bush Interior Department.
But, the environmental group that filed one of two challenges to the Bush changes to the rule — the National Parks Conservation Association — filed a court brief supporting the Obama effort to circumvent the public rulemaking process. The best the groups that filed the other suit could do was a Sierra Club statement calling the court ruling “unfortunate.”
Can you imagine the outcry from the environmental community if the Bush administration had tried this kind of legal maneuver in one of its many efforts to weaken pollution rules? By their silence on this Obama action, are the environmentalists saying the end justifies the means if the end is tougher regulation of strip mining? Or does support for open government depend, as the saying goes, on whose ox is getting gored?
In any event, this ruling does put a big monkey wrench in the plans the Obama administration has touted as its initiative to “reduce environmental impacts” of mountaintop removal.
So what next?
Well, the two citizen group lawsuits challenging the buffer zone rule are still pending before Judge Kennedy. So those groups can litigate those cases. Or, the Obama administration could initiate its own new rulemaking to overturn the Bush buffer zone changes — and in the process actually tell citizen groups and the industry whether it plans to apply buffer zone protections to the footprint of valley fills.
Environmental groups have called for — and Obama has promised — reforms in the way other federal agencies, from the EPA to the Corps of Engineers and Interior’s OSMRE, regulation strip mining. On the one side, the National Mining Association says these enhanced permit reviews amount to a “regulatory black hole” for new mining operations. On the other, environmental groups argue the enhanced permit reviews are far, far short of the mountaintop removal ban they hoped Obama would institute.
Somewhere in the middle, what appears absolutely certain is that neither side is really clear at all on what the Obama administration’s position is, what exactly its goals are, or what exactly the rules on when permits will or won’t be issue are.
Take the Corps of Engineers’ issuance of a big new strip mining permit for CONSOL Energy’s Peg Fork Surface Mine. The permit was issued nearly a week ago, last Friday, and neither the Corps nor EPA (which lifted its objection to the permit) have publicly released permit documents that would tell the public the scope of what was approved or what changes were made to reduce environmental impacts.
Where’s the transparency? And where are the concrete guidelines for what is and isn’t allowed for a mining permit to be approved or rejected? If Obama is going to ban mountaintop removal, or enact policies so stringent that permits slow to a trickle and the faucet eventually shuts off, it should do those things in an open, transparent way. If it’s instead simply going to toughen a few policies here and there to limit the damage, it should likewise be open about that.
As Joe Lovett, executive director of the Appalachian Center for the Economy and the Environment said the other day on Coal Tattoo:
What the administration has to do is develop a policy and let everyone know what that policy is.