The Congressional Review Act (“CRA”) allows Congress to disapprove so-called “midnight” rules of an outgoing administration. But, disapprovals require congressional approvals and are subject to presidential vetoes—making them of limited utility where a rule was issued by an agency of a current president. Thus, while Congress voted to disapprove several rules under the Obama administration,…
The controversy over EPA’s definition of “waters of the United States” (WOTUS) took another meander on January 13. United States Supreme Court surprised many by granting a petition for certiorari to decide which court – the federal district or circuit courts – have the authority to adjudicate disputes over a regulation defining a key term of the Clean Water Act (CWA). Ever since EPA and the Corps…
In combination with the release of the Stream Protection Rule (“SPR”), previously reported, the Obama administration released a Memorandum of Understanding (MOU) between the U.S. Fish and Wildlife Service (“F&WS”) and the United States Office of Surface Mining (“OSM”) which expands the role of the OSM in delegated state program oversight and the consideration of…
Obamanation: 8 Years Later, OSM Finalizes Stream Protection Rule
The United States Office of Surface Mining (“OSM”) has finalized its “Stream Protection Rule (“SPR”) (12/20/16). This was formerly known as the “buffer zone rule” and dates to the early 1980s. OSM adopted it originally as a means of keeping sediment out of streams. It prohibited land disturbance within 100…
My colleagues and I have the privilege of working with coal operators every day in the places where coal is mined in this country. From coal basins in Appalachia to Illinois to the Powder River Basin, we have had the pleasure of helping those who mine the coal that powers our homes and makes our steel.
In recent years, the challenges have been numerous, to put it mildly. Undoubtedly, many of those…
In 2009, Congress asked EPA to examine the relationship between hydraulic fracturing and drinking water resources. In June 2015, EPA released for external review a draft report entitled “Assessment of the Potential Impacts for Oil and Gas on Drinking Water Resources.” The Executive Summary observed that the Assessment “synthesizes available scientific literature and data to assess the…
The Natural Gas Act (“NGA”) of 1938 grants the Federal Energy Regulatory Commission (“FERC”) exclusive authority to regulate sales and transportation of natural gas in interstate commerce. To that end, Section 7 of the NGA empowers FERC to authorize the construction and operation of interstate transportation facilities—i.e., pipelines. FERC does so by determining whether a project serves the…
“A man always has two reasons for doing anything -- a good reason and the real reason.” J.P. Morgan
Whenever an agency proposes to change the procedures it follows to make decisions, it must offer a good reason for the change. When an agency proposes to make multiple changes in its procedures, there is almost certainly a real reason for its proposal. This is why EPA’s May 18 (81 FR31344) proposed…
The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.
On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio…
During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading. In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.
In February, the U.S. EPA and U.S. Geological Survey (USGS) jointly released a draft technical report entitled “Protecting Aquatic Life from Effects of Hydrologic Alteration.” This 92 page text summarizes the received wisdom among the regulatory agencies. They include the following observations: “flow regime plays a central role in supporting healthy aquatic ecosystems and the ecological…
EPA has released a pre-publication copy of a proposed rule to expand its risk management program under § 112(r)(7) of the Clean Air Act. EPA has long maintained a risk management program (“RMP”) under § 112(r) of the Clean Air Act for “stationary sources” that hold “regulated substances” in excess of threshold quantities. See 40 C.F.R. Part 68. These facilities have been…
