The Stream Protection Rule Gets Axed
While traveling about the country on his post-election thank you tour, President-elect Donald J. Trump frequently remarked that he and his supporters had together “made history.” Just four weeks into his presidency, the history-making has continued. For only the third time ever, the Congressional Review Act (CRA) was successfully used to repeal a federal regulation—in this case, the Stream Protection Rule.
The CRA is a seldom-used tactic adopted in 1996 as a part of the “Contract with America,” whereby Congress can review any new major rule issued by a federal agency and vote to overturn implementation of the regulation in question. A CRA vote only needs a simple majority—rather than the 60 votes typically needed in the Senate to secure cloture—and a president’s signature. The first regulation overturned via the CRA came in 2001 when Congress voted to repeal a controversial Occupational Safety and Health Administration (OSHA) rule addressing ergonomic workplace injuries. The second came last week when President Trump signed a proposal to repeal certain overly-burdensome regulations imposed on the energy industry under Dodd-Frank.
The Stream Protection Rule was finalized this past December by the Office of Surface Mining Reclamation and Enforcement (OSMRE) within the Department of the Interior to protect streams affected by surface coal mining and reclamation operations. Given that 90 percent of all coal mines have no offsite impacts (including 100 percent of operations in some states), the rule unnecessarily imposed extensive monitoring and reclamation requirements on coal companies without sound scientific justification. Internal government analyses showed mining job losses approaching 7,000 while independent analyses pegged the number closer to 80,000. In response, at the 2016 ALEC Annual Meeting, the Energy, Environment and Agriculture Task Force adopted a resolution that, among other things, urged Congress to pursue options to overturn the rule.
Repeal of the Stream Protection Rule passed the House of Representatives two weeks ago by a vote of 228-194. The Senate followed suit with a 54 to 45 vote that interestingly included ayes from four Democratic senators all representing states won by President Trump: Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (WV) and Claire McCaskill (MO). President Trump signed the measure into law on Thursday. Significantly, this move disallows OSMRE from promulgating a “substantially similar” regulation in the future.
Congressional leaders have indicated that they will continue to use the CRA to repeal other regulations finalized since June 2016, including Interior’s Methane and Waste Prevention Rule that targets the flaring of natural gas on federal land.