Environmentalists were outraged earlier this month after the Republican-led Congress used an obscure law to erase a new regulation aimed at reducing the environmental damage caused by coal mining. The votes to undo the so-called stream protection rule, released last month on President Barack Obama’s last day in office, were “a disgraceful opening salvo from this Congress, as they begin to try and do the bidding of big polluters,” Michael Brune, executive director of the San Francisco, California–based Sierra Club, said in a statement.
But the demise of the rule, which took regulators years to craft, drew a less impassioned reaction from a scientist on the front lines of the fight over coal mining. The regulation, which had been weakened during the rulemaking process, “was not a game changer,” says aquatic ecologist Margaret Palmer of the University of Maryland in College Park, who has played a high-profile role in documenting coal mining’s toll on streams in the Appalachian Mountains. In particular, she says, if the rule had survived, it would not have barred one of the most destructive mining practices in Appalachia: blasting away mountaintops to uncover coal seams and piling the debris in adjacent stream valleys. And because the rule’s demise won’t do much to ease the economic headwinds buffeting the United States’s coalfields, it is unlikely to unleash a mining boom.
The rule was killed as part of an ongoing purge of science-based regulations approved late in the Obama administration. The reversals are allowed by the Congressional Review Act, a rarely used 1990s law that gives Congress 60 working days to reject new rules. In practice, that means lawmakers can review scores of regulations issued after June 2016. But Republicans are expected to repeal just about a half-dozen rules.
Already, both houses of Congress have passed a measure eliminating the stream rule, which President Donald Trump is expected to sign. Legislation canceling several other environmental and climate rules could soon follow. Opponents of these rules argue that repealing them will help create jobs and save industry money. Coal mining groups, for example, claimed the stream rule would have eliminated up to 77,000 jobs in coming years, although the Obama administration and some observers said that figure is wildly exaggerated.
The rule was meant to overhaul regulations that mostly dated from 1983, before the spread of two major coal mining techniques in the United States: mountaintop removal and longwall mining, an underground method that lets tunnels collapse after the coal is removed, sometimes altering the surface landscape through subsidence. Research by Palmer and others has found that mining coal and dumping the overburden, particularly from mountaintop mines, alters the chemistry in nearby streams, making them inhospitable to some aquatic life. The scientists also found little evidence that affected streams or mined landscapes are restored to their original condition, as mining companies often promised.
Those findings helped prompt the Obama administration to launch a major rewrite in 2009. The final product included some tougher provisions, says Peter Morgan, a Denver-based lawyer for the Sierra Club. The new rule required companies to do more extensive stream monitoring before, during, and after mining, and it detailed environmental impacts that were prohibited under a federal law that bars “material damage” to streams and groundwater outside a mine area.
But during a lengthy public comment period on the rule, miners successfully argued against totally banning the practice of burying Appalachian streams in debris. And the final rule left much of the implementation to state agencies in places where the coal industry is powerful, Morgan says. “I think the general consensus was the rule was pretty watered down by the time it reached the final form.”
Still, Morgan says it could have helped opponents of some mining projects. In southwest Pennsylvania, for example, environmentalists are battling Consol Energy and its subsidiary CNX Coal Resources over plans to expand the Bailey mine, one of country’s largest underground coal mines. The proposal calls for extending longwall tunnels beneath streams running through a state park. Opponents argue that postmining subsidence will harm the streams. A provision in the Obama rule designating subsidence as a kind of “material damage” might have strengthened the opponents’ case, says Patrick Grenter of the Center for Coalfield Justice in Washington, Pennsylvania, which is challenging the mine expansion. (Even without the rule, a state judge temporarily halted part of the expansion while the case is underway.)
Now that the rule will reset to its 1983 version, environmental groups are likely to fight mines using the federal Clean Water Act, says Craig Johnston, an environmental law professor at Lewis & Clark Law School in Portland, Oregon. Under the act, the U.S. Army Corps of Engineers usually must issue a permit for blocking a stream with mine waste, and the U.S. Environmental Protection Agency also has to sign off. The repeal “puts the pressure back on the Corps, basically,” Johnston says.
Meanwhile, the U.S. coal industry continues to face economic difficulties largely caused by low-cost natural gas. Coal jobs fell by 18,000 between 2012 and 2015, to 69,500, according to the U.S. Bureau of Labor Statistics. And production has fallen by 38% since 2008, according to the federal Energy Information Administration (EIA). This month, EIA predicted a slight uptick in production by 2018, but it expects production to keep sliding in Appalachia because operations there are more costly than, for example, in the open-pit mines of the West. As Pat Parenteau, an environmental law professor at Vermont Law School in South Royalton, puts it, “we’re pretty much done with coal mining in Appalachia.”