Interior Issues ANPR to Reverse Bush Stream Buffer Zone Rule

And in the meantime is rolling out a broader oversight program increasing scrutiny of MTR

The Department of Interior’s Office of Surface Mining Reclamation and Enforcement (OSM) announced yesterday that it is publishing an advance notice of proposed rulemaking (ANPR) on how to protect streams from the adverse impacts of surface mining for coal, including mountaintop removal mining (MTR). This rule will revise current regulations including the stream buffer zone rule that the Bush Administration put out at the last minute in December 2008. (You can read a prior post on the stream buffer zone rule here.) Although the ANPR has not yet been sent to the Federal Register, when it is (which OSM says will happen "shortly"), the ID number will be OSM-2009-0009.

This move fulfills a promise that Interior made to the U.S. District Court for the District of Columbia two weeks ago. (Again, see prior post.) Although folks in coal country are surely rejoicing that this is moving forward, when Interior made that promise, environmental groups decried the timetable as too slow.

Perhaps it will help that, as yesterday's press release explains, "While the new rule is being developed, Interior is taking immediate actions to strengthen protections for streams and communities in coal country, provide regulatory certainty for industry, and bolster OSM’s oversight and enforcement activities." Specifically, OSM has established a new practice under which "the review and approval of [Surface Mining Control and Reclamation Act] SMCRA permits must be coordinated with reviews and authorizations required under the Clean Water Act. OSM will work with the Corps of Engineers and the Environmental Protection Agency to coordinate these permitting processes and ensure effective and coordinated compliance with provisions of the Clean Water Act." An overview of these practices and actions can be read here.

You can read the AP's account of this development here, one from Environment News Sevice here, and AFP's, here. For a local take on the action, see the Charleston (WV) Gazette here. And for reaction from the mining community, you can read an article on Mineweb.com entitled "Obama Administration mountaintop mining siege targets state mining regulation."

Analysis of Impact of New Fourth Circuit Appointee

Greenwire ran an excellent short piece yesterday on the potential impact on environmental law of the confirmation of Judge Andre Davis to the U.S. Court of Appeals for the Fourth Circuit. The article makes four essential points:

• Judge Davis's appointment means that Democratic appointees now comprise a majority of the court.
• The Fourth Circuit has been making important rulings on hot-button environmental issues, such as the permissibility of valley-fills during mountaintop removal mining (MTR).
• The Fourth Circuit recently ruled in a case, U.S. v. Gould, that could have a major impact on the interpretation of the scope of Congress's Commerce Clause powers; how that scope is interpreted can be critical in many environmental law cases.
• Cases that have already been considered by a three-judge panel of the court may be subject to en banc review--a process that will now have Democratic appointees as the majority of decision makers.

It does caution, however, that "[a]s a district judge, Davis once sat on the board of the Foundation for Research on Economics and the Environment, an organization funded by companies such as Texaco, Exxon Mobil Corp. and General Motors Co. that opposes environmental regulation." The full article can be read here.

I would add that the Fourth Circuit has made important rulings on the Commerce Clause prior to this year, in cases that went up to the Supremes and were used to impose curbs on the limits of Congress's power: United States v. Lopez, 514 U.S. 549 (1995), and U.S. v. Morrison, 487 U.S. 654 (1998). Whether the Roberts Court will be eager to take on the bounds of the Commerce Clause in quite the same way that the Rehnquist Court was remains to be seen, however.

Interior Continues Slow Process of Revoking Midnight Regulation on MTR

Advanced notice of proposed rulemaking won't result in rule until early 2011

In more regulatory activity, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM) announced its intention to issue an advanced notice of proposed rulemaking by the middle of this month for the rule meant to overturn the Bush Administration's December 2008 change in the Stream Buffer Zone Rule under the Surface Mine Reclamation and Enforcement Act (SMREA), 30 U.S.C. § 1292. That rule, they promise, will be out as soon as early 2011.