In what appears to be a reoccurring nightmare, OSM’s inability to get out of its own way in promulgating a stream protection rule is again raising questions about its commitment to state cooperation and transparency. From new evidence that came to light last month, the agency appears to favor the Environmental Protection Agency’s (EPA) rulemaking model, the one that places policy goals ahead of expert opinion, ahead of contrary facts and even common sense.
In a February 23 letter to OSM Director Joe Pizarchik, state mining agencies — the designated expert consultants on the new and improved Stream Protection Rule — claim the agency “has not provided for meaningful participation by the cooperating agency states in the preparation of the [EIS] and its seems unlikely that the agency will do so prior to release of the draft [EIS].” After being shunned for four years, and despite their attempts to engage with OSM, some states are opting out of the process, others are likely to sue the agency and all have asked that their objections be clearly noted in any final rule to avoid the appearance of endorsing it.
This presents two problems for OSM. First, by ignoring the state mining professionals that implement the stream protection program, OSM has raised serious questions about the rule’s legality. That’s because under current law and regulation, OSM is obligated to meaningfully consult with experts when developing any regulation. State mining agencies are the experts, as OSM acknowledged when it signed a memo of understanding with them in June 2009 making them official “cooperating agencies.” Failing to consult the states since 2011 constitutes regulatory malpractice and is grounds for a court challenge.
The second problem may be more troublesome for OSM.
By ignoring the states whose advice it didn’t like, OSM recalls its embarrassing experience with a contractor whose findings it didn’t like. Hired to prepare the EIS in 2010, the contractor said OSM’s preferred alternative — shared discreetly with a few states — would make lots of coal uneconomic in 22 states and cost at least 7,000 jobs. Bad news for regulation nation.
So, failing to get the results it paid for, OSM asked the contractor to come up with better ones. The contractor reportedly refused, prompting the agency to admit defeat, change course and retool the rule to lessen its impact on coal communities. Ha! Just kidding. Actually, OSM fired the contractor in 2011. The news media found out about this and, with customary restraint, hanged OSM out to dry, leading an angry Congress to rake OSM officials over hot coals. Given this stumble bum history, you’d think OSM would take greater care this time to craft a revised rule that met process and substantive requirements. That’s because you don’t live in Washington.
NMA’s concerns with this serial delinquency are serious. Lacking expert input from the very state agencies expected to implement it, a new stream protection rule from this administration could look like a wish list from anti-coal activists at Appalachia Voices, much as EPA’s carbon rules were authored by National Resources Defense Council lawyers. Already more than 7,000 miners have lost their jobs in Appalachia alone. A new rule could make matters worse, especially with far-reaching requirements that, like its woebegone predecessor, would destroy coal jobs far beyond Appalachia.
Thankfully, Congress is looking at OSM’s budget request for the new fiscal year. This includes an additional $15 million the agency wants to study the impacts of spill on streams — the impacts it presumably knows enough about to regulate. OSM doesn’t need the money and we don’t need the rule.
Luke Popovich is a spokesperson for the National Mining Association, the industry’s trade group based in Washington, D.C.