Photo of Jerry Callaghan

On February 16th, President Trump signed a bill repealing the so-called stream protection rule, which was designed to prohibit dumping of debris from mountaintop removal mining into valleys and streams below the mining activity. The rule was promulgated by the Office of Surface Mining Reclamation and Enforcement (OSMRE) and went into effect on January 19th, the day before President Trump took office. In early February, the House and Senate passed the bill, using a repeal mechanism in the Congressional Review Act (CRE). The CRE was passed under Speaker Gingrich during the Clinton Administration and had been used only once before Trump became president.

The stream-protection rule was supported by environmentalists and opposed by the mining industry. Environmentalists have few options at this time. They could seek to beef up stream protection in the states, but mining states, where enforcement would have the most effect, are not likely to support such a measure. Or they could challenge the CRE in court, but the courts would be expected to give deference to the CRE, particularly because Congress delegates authority to administrative agencies to promulgate regulations and presumably has the authority to repeal them.

Environmentalists will probably have to wait until there is a democrat in the White House, but even then, the CRE prohibits agencies from passing regulations that are “substantially the same” as the regulations repealed under the CRE. Therefore, any future stream-protection regulations from the OSMRE would likely encounter a legal challenge on the basis of substantial similarity.

At the end of the day, the best hope for environmentalists would be a Democratic Congress that would impose stream protection measures directly by statute.