Judge Lets Mountaintop Mining Rule Stand, Cites Rulemaking Flaws

A federal judge will not allow [1] the Obama administration to dispense with a Bush-era regulation that eased environmental restrictions on mountaintop mining operations.

Yesterday, U.S. District Judge Henry H. Kennedy Jr. declined to grant the Interior Department’s request to reject the rule and send it back to the agency.

In this instance, the shift in presidential administrations made for unusual circumstances, wherein an agency is asking a court to find fault with one of its own regulations. The Obama administration did not cotton to the Bush rule, which makes it easier for mining companies to dump waste into valleys and streams. President Obama has pledged to crack down on mountaintop mining.

After the National Parks Conservation Association sued the Interior Department on the grounds the rule violates environmental law, current Interior Secretary Ken Salazar attempted to undo the regulation by simply not defending it. In April, Salazar decided to ask [2] the court to send the rule back to Interior, saying it “simply doesn’t pass muster with respect to adequately protecting water quality and stream habitat that communities rely on in coal country.”

Salazar is right. Mountaintop mining companies already dump mining waste into streams, imperiling nearby communities. In some cases, the dumping doesn’t just pollute the water, it overtakes the streams entirely. "1,208 miles of streams in Appalachia were destroyed from 1992 to 2002,” according to Earthjustice figures [3].

But the National Mining Association argued that Salazar’s request was tantamount to a brand new rulemaking. By going through the courts and avoiding public notice and comment, Interior was trying an end run around the regulatory process, the industry said.

Kennedy agreed with the mining industry. According to BNA news service [4] (subscription), Kennedy wrote, “The Court finds no precedent to support the proposition that it should remand and vacate the [rule] under the circumstances presented here.”

I don’t follow that logic. While it may not be typical practice, agencies do sometimes ask courts to set aside a rule (especially if the rule is a dud, like this one), and courts sometimes oblige.

The mountaintop mining rule was one of many so-called midnight regulations [5]the Bush administration finalized during its last few months in power. No word yet on next steps the Obama administration may take to undo the rule.