More Flimflammery on Mountaintop Mining

In a Nov. 18 press release [1], the Interior Department trumpets “Initiatives to Better Protect Streams in Coal Country.”

[2] Is the Obama administration finally doing away with the terrible stream buffer zone rule [3] finalized near the end of the Bush administration – the rule that lifted the decades-old ban on depositing mountaintop mining refuse in or near rivers and streams?

Not exactly. Interior is announcing that sometime in the near future it will publish an advanced notice of proposed rulemaking (ANPRM) which will request “comments on alternatives for revising the current regulations.” The advanced notice currently awaits White House approval. An actual proposed rule will be delayed until 2011, according to the Sierra Club [4].

(Update: Interior published the notice Nov. 30. Read more here [5].)

The Obama administration had tried to roll back the Bush-era stream buffer zone rule in the courts. Although their effort was valiant, they were rebuffed by a federal judge who faulted the administration [6] over procedural requirements.

Those circumstances engendered hope that the administration takes the stream buffer zone rule seriously; this latest news does not.

Joe Pizarchik, the head of Interior’s surface mining office, said, “We are moving as expeditiously as possible in the rulemaking process, but we will not take shortcuts around the law or the science.”

That statement is a bunch of hooey. There is no need for Interior to issue an ANPRM. An actual notice of proposed rulemaking would include any scientific conclusions the agency has made and could pose questions on any science the agency feels is unsettled. ANPRMs are not required by the Administrative Procedure Act [7]or any other federal regulatory process statute. They are particularly useless in situations where an agency has already settled on proposing a course of action (in this case, using a new rule to modify or repeal the Bush rule). The ANPRM is an unnecessary step that will delay the goal of reinstating environmental protection for rivers and streams in coal country, plain and simple.

This is not the first time the Obama administration has sent mixed signals [8] on mountaintop mining. In May, after meeting with coal industry representatives, the administration approved a dozen mountaintop mining permits. The decision came about two months after the EPA said that it would conduct more scrupulous environmental reviews of permit applications.

Most environmentalists would agree that ending mountaintop mining should be a priority for the Obama administration; but if it’s not, at least be honest about it.

Photo by Flickr user NRDC media [9], used under a Creative Commons license.