What Is “Open” and “Transparent” Obama Administration Hiding on Stream Buffer Rule?

While environmentalists loathe coal in general, they hate especially coal produced via mountaintop removal mining. Unfortunately for them, the mining practice, which is essential to the economies of West Virginia and Kentucky, is sanctioned by state and federal law. In 1977, the Congress enacted the Surface Mining Control and Reclamation Act, legislation that created a regulatory regime for surface mining practices like mountaintop mining.

Now, thirty-five years after the Congress endorsed mountaintop mining, President Barack Obama is poised to radically reinterpret SMCRA—legislation that authorizes mountaintop mining—such that the law would ban it. This contortion of legal logic is an affront to Congressional intent. It has engendered a stern reaction from the majority party on the House Natural Resources Committee, which is threatening to subpoena the White House unless it starts explaining its bizarre reasoning.

At issue is a controversial regulation derivative of SMCRA known as the “100 foot buffer rule.” As its name suggests, it basically prohibits mining activity within 100 feet of intermittent or perennial streams, unless the mine operator installs the best technology available to mitigate the damage. The key is the latter clause: mining activity within 100 feet of the stream is acceptable, as long as the mine operator uses the best available techniques to lessen the environmental impact. This sort of balance is a fundamental theme of SMCRA: The legislation explicitly supports industrial activity as necessary to the well-being of the country, but it sought to achieve wealth creation in an environmentally responsible manner.

SMCRA recognized the need for trade-offs, but environmentalists concede nothing. In the 1990s, green litigation firms initiated lawsuits alleging that valley fills, which are intrinsic components of surface coal mine engineering, violate the buffer rule. Valley fills are a necessary byproduct of mining in the steep terrain of Appalachia. When you dig up coal, the loosened dirt and rock, known as overburden, have more volume than when they were compacted. Much of this overburden is used to reconstruct the approximate original contour of the mined terrain. However, there is almost always “extra” overburden, and this excess dirt and rock is placed in the valley at the base of the mine. This is known as a valley fill. Without valley fills, there can be no surface mining industry in Appalachia.

The problem with the environmentalists’ reasoning is that the Fourth Circuit Court of Appeals has determined that SMCRA clearly “contemplates that valley fills will be used in the disposal process.” In a different ruling, the same Court found that, “it is beyond dispute that SMCRA recognized the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose.” Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003)

It doesn’t make sense that SMCRA would envision valley fills, and also prohibit them. This is why every administration (save perhaps for Obama’s) since the passage of SMCRA has interpreted the 100 foot buffer rule as not conflicting with the construction of valley fills, so long as mine engineers construct those valley fills using the best technology available. During his second term, President George W. Bush ended the ambiguity wrought by the environmentalist lawsuits. Over the course of five years, the Bush administration undertook a formal rule-making to codify the harmonious coexistence of valley fills with the 100 feet buffer rule. A copy of the final rulemaking is available here.

Shortly after taking office, however, President Obama had the Interior Department try to reverse the Bush rule change, but a federal court slapped down this effort, because the Interior Department had tried to impose the rule change without a formal rule making. (This is but one example of this administration’s war on administrative procedure. For others, read here.)

Thus rebuffed, the administration promised to revisit the issue within two years. In the meantime, the Interior Department in April 2010 issued a notice of proposed rulemaking, whereby it announced it was reconsidering the standing interpretation of the 100 feet buffer rule.

In February 2011, the Associated Press reported that the administration’s pending interpretation of the 100 foot buffer rule would lead to 7,000 jobs lost, almost exclusively in Appalachia.

The AP article piqued the attention of the House Natural Resources Committee, which launched an investigation into the administration’s actions regarding the 100 foot buffer rule. In February and April last year, Committee Chairman Doc Hastings (R-Washington) sent a series of letters to the White House, asking for additional information. In particular, he sought:

• Recordings of meetings and conversations between the Department and contractors. There are known to be 43 digital audio recordings totaling 30 hours in combined length.

• Documents and communications related to the decision to disregard the 2008 Rule and to conduct a new Environmental Impact Statement.

• Documents and communications related to the dismissal of the contractor after it was made public that their economic analysis showed the rewrite of the rule would cost thousands and jobs and cause economic harm.

For unknown reasons, the Obama administration has rebuffed the Committee’s requests for more information. (So much for transparency and openness!) Last week, a Chairman Hastings and Energy and Minerals Subcommittee Chairman Doug Lamborn (R-Colorado) sent a final request to the White House. If the administration again refuses to comply, Reps. Hastings and Lamborn have threatened to exercise the Committee’s right to subpoena the documents and recordings.

The President’s predecessor spent 5 years conducting a public rule making to make sense of the 100 foot buffer rule, and thereby protect thousands of mining jobs in Appalachia. For a year and a half, the Obama administration has been conducting a similarly consequential rulemaking—one that threatens 7,000 jobs, by its own estimate—but it has been performed in secret. Mr. President, what are you hiding?