Protecting Coal Mining From the Stream Protection Rule

On Wednesday, February 3, the Senate Environment and Public Works committee will hold a hearing on a new “Stream Protection Rule” being proposed by the Department of the Interior’s Office of Surface Mining (OSM) that looks to be another nail being hammered into the coal industry’s coffin by the Obama Administration.

Energy and mineral resource development in the U.S. is being thwarted by a wave of agenda-driven federal agency rulemakings being rushed through before the end of this administration. Oil, natural gas, and coal have been targeted for replacement by renewable energy sources. The coal industry has been fast-tracked by the OSM’s proposed new “Stream Protection Rule” (SPR). 

The new SPR would supersede the existing Stream Buffer Zone Rule, enacted in 2008 to regulate surface coal mining on aquatic environments in Appalachia. But, as is so often the case in the world of environmental regulation, that was not sufficient for the OSM, and, over the past seven years it has continued to press for more and stricter regulations on coal mining all across the United States.  They seem to prefer a nationwide one-size-fits-all regulatory enforcement scenario, even though local geology, geochemistry, and terrain vary widely between states and basins.  As it is, these concerns are more efficiently addressed by the states and policed by the industry.

That aside, the real impacts of the SPR, openly acknowledged by OSM, leave tens of billions of dollars’ worth of coal in the ground with no chance of future development—“stranded reserves,” as OSM terms them in the rule. Those coal deposits, according to OSM, “…are technically and economically minable, but unavailable for production given new requirements and restrictions included in the proposed rule.”  Yet, OSM’s engineering analysis, cited by a Congressional Research Service study, states that there will be no increase in “stranded reserves” under the SPR. In other words, the same volume of coal will be mined under the proposed rule as under the current rule…an OSM oversight, no doubt.

The proposed rulemaking employs questionable geoscience and mining engineering issues such as overemphasizing the importance of ephemeral streams to limit mining activities in all areas, requiring needless increases of subsurface drilling and geologic sampling, redefining accepted technical terms such as “approximate original contour” and “material damage to hydrologic balance,” and creating new unfamiliar terms such as “hydrological form” and “ecological function.”

But OSM likely is not focused on technical issues as much as their main concern: that the new rule is more stringent than the existing 2008 rule as is possible, and that it will apply nationally. Hence, the rule appears to be more for the benefit of regulators and places undue burden and expense on coal miners. Neither is OSM overly concerned with the big three tangible adverse impacts of their proposed rulemaking: lost jobs, lost resources, and lost tax revenue—with Appalachia being hit the hardest. Consensus estimates—not OSM’s—of the number of mining-related jobs lost nationally due to the SPR: in excess of 100,000 to upwards of 300,000. The decrease in coal tonnage recovered: between roughly 30 to 65 percent less. The annual value of coal left in the ground because of the rule: between 14 to 29 billion dollars. The estimated decrease in Federal and coal state tax bases: between 3.1 to 6.4 billion dollars. These are not very encouraging statistics for an industry that is currently responsible for supplying 40 percent of U.S. electrical power generation.   

Interior’s Office of Surface Mining has failed to adequately justify its proposed Stream Protection Rule in light of the federal and state rules and regulations already in place. Rather, OSM has embarked on a seven year odyssey of agenda-driven rulemaking that would force-fit regional and local characteristics coal mining operations to a nationwide template. However, Congress and the courts had already established that a uniform nationwide federal standard for coal mining would not be workable given the significant differences in regional and local geology, hydrology, topography, and environmental factors related to mining operations everywhere. On the non-technical side, OSM does not retreat from its admission in the preamble to the proposed rule that the SPR is politically motivated. Press reports have quoted an OSM official as acknowledging that there was pressure to get the SPR done in this administration’s last year.

Enacting the new SPR would be an ominous threat to a coal mining industry that deserves much better from this or any other future administration. This is one reason why OSM’s proposed SPR has been tagged by the National Mining Association as “a rule in search of a problem.” However, to paraphrase a more appropriate quote: the voluminous Stream Protection Rule is not the solution to the coal industry’s problems—rather the Stream Protection Rule is the problem.

It will be interesting to see how this all plays out in the Senate on Wednesday.