In The News

Rep. Louie Gohmert (R-Texas) says the Interior Department may be breaking the law as it develops the forthcoming stream protection rule.

He was referring to the Office of Surface Mining, Reclamation and Enforcement's decision not to share new documents on the regulation with cooperating states.

Mining companies, states and pro-coal lawmakers, many of them skeptical of the proposal, see OSMRE's actions as another misstep in the rulemaking and a potential legal flaw.

Gohmert, chairman of the House Natural Resources Subcommittee on Oversight and Investigations, said at a hearing yesterday that he was concerned about "what appears to be another harmful federal regulation made yet by another federal agency that's not following the law." He accused OSMRE of running "roughshod over the very states they were supposed to be working with."

OSMRE gave cooperating states parts of the rule's draft environmental impact statement early during the Obama administration. Now they want new documents to make sure the agency took their opinions into account.

The agency may be hesitant to share new information following a 2011 leak, which led to reports that the rule would cost thousands of jobs. Increased congressional scrutiny followed.

Still, states say the National Environmental Policy Act rules and White House Council on Environmental Quality guidance require OSMRE to share more information. So far, the agency has verbally updated states.

Randall Johnson, director of the Alabama Surface Mining Commission, said he wasn't necessarily attacking the forthcoming rule. "All we're attacking is the process," he said.

Gregory Baker, reclamation program manager for the Virginia Department of Mines, Minerals and Energy, said OSMRE has yet to justify the stream protection rule.

Several states have decided to officially withdraw as cooperating agencies, including Alabama, New Mexico, Utah, Texas and West Virginia, which voiced its decision at the hearing.

"That decision was communicated by letter to the director of OSM yesterday," said Russell Hunter, counsel for West Virginia's Mining and Reclamation Division. "We thought that we could have a more effective input by assuming another role in the process."

Gohmert, who complained about OSMRE not turning over all the documents requested, told state witnesses, "Sorry for the lack of input the states have had."

'More open process'

Michigan Rep. Debbie Dingell, the subpanel's top Democrat, asked the states whether the George W. Bush administration included them as cooperators when developing a previous rule.

When none of the witnesses raised their hands, she asked, "So you didn't do it back then, either?"

"I just wanted to get that point on record," she said, and added that the Obama administration had a "more open process."

But then, when Rep. Alex Mooney (R-W.Va.), who has legislation meant to block the rule, asked whether the lack of OSMRE cooperation was "unprecedented," Hunter responded, "That's correct."

Asked how it has been to work with OSMRE under the Obama administration, Johnson said, "I would say that our experience with OSM over the last six years, seven years, has not been very rewarding."

Democrats and environmental advocates counter that OSMRE is simply enforcing the law while states are falling down on the job. Dingell asked Hunter whether his agency faces "capture" by the companies it oversees and whether it has the tools to police coal mining.

Hunter responded, "I believe the West Virginia DEP has in place an effective regulatory program."

Dingell then pointed to a company that has had 20 environmental violations and three work cessation orders and wondered whether industry "regards these violations as the cost of doing business?"

Hunter said, "I don't have an opinion of that."

Dingell then pointed out that Natural Resources Committee Republicans have been investigating the stream protection rule for four years, issued two subpoenas and collected more than 13,000 documents. The proposed rule is under review by the White House Office of Management and Budget.

Debate over studies

Democrats have also been increasingly highlighting research that finds Appalachian mountaintop-removal coal mining has a number of negative health effects. The debate generated some fireworks during last week's hearing on the same rule.

"It's very hurtful when you see people in your community suffer," said Ohio Valley Environmental Coalition organizer Dustin White, an outspoken opponent of Appalachian strip mining.

But Gohmert pointed to research by Jonathan Borak, who has taught at Yale University, that suggested coal alone could not be blamed for poor health outcomes in Appalachia.

Dingell countered that the paper was "not a Yale study," as some have described it. She also said, "It was paid for by the National Mining Association."

In 2012, Borak said the paper was an expansion of work commissioned by NMA. He said the trade group did not have input on his conclusions.

Mooney, suggesting that heavy-handed regulations are harmful to economic development, asked White, "Not having a job is good for your health, either?"

White said the markets and not the Obama administration were to blame for coal mine job losses. "The market value right now is what is impeding the coal industry," he said.

Mooney responded, "I think a lot of factors."

Gohmert seized on the argument, saying that overregulation "really does make a difference." He said White House coal power plant regulations would "force potential brownouts." And he wondered whether the president was making poverty in Appalachia worse. "I'm curious, and I want to look into it," Gohmert.

The administration has denied that power plant proposals will hurt electric reliability, and OSMRE Director Joseph Pozarchik has said the stream protection rule's job impact will likely be minimal.

But Gohmert, like many pro-coal Republicans and Democrats, pointed to comments Obama made in 2008 before becoming president, when he said regulations would make it difficult for companies to build new coal plants.

"Our president believes he can make the price of coal-fired energy skyrocket," Gohmert said. "That is one campaign promise he's keeping."