After Obama failure to act on stream buffers, enviro groups head to court

A broad coalition of citizen and environmental groups on Jan. 28 reopened litigation against the U.S. Department of the Interior for its removal of a key protection for streams against mountaintop removal mining—the so-called “Stream Buffer Zone Rule.”

The Bush administration removed this protection through a “midnight rulemaking” in 2008, and the Obama administration agreed the Bush administration’s action was unlawful, the appealing groups noted in a Jan. 28 statement. But Interior, which oversees the U.S. Office of Surface Mining, has since failed to undo the Bush administration’s rulemaking by the deadline it agreed to, they added.

The Bush administration repealed the 25-year-old Stream Buffer Zone Rule just before leaving office, permitting widespread dumping of mining waste in Appalachian waterways, the groups said. In the early days of the Obama administration, the groups put the lawsuit on hold based on the administration’s promise to replace the Bush rule by 2012. Because the administration failed to live up to its agreement to revoke the Bush rule and issue a new stream protection rule, the groups said they are returning to court, which in this case is the U.S. District Court for the District of Columbia.

Earthjustice attorney Jennifer Chavez said: “While the Interior Department misses its deadline and drags its feet on revoking the disastrous Bush rule and finally enforcing the surface mining law, Appalachian communities and families are suffering from the extreme pollution and destruction of mountaintop removal. The Obama Administration must not wait any longer to restore basic protections for waterways and families.”

Kentucky Waterways Alliance (KY) executive director Judy Petersen said: “We don’t enter into this litigation lightly, but we know that dumping mining wastes into streams destroys the stream and has negative impacts for miles downstream. We were hopeful the Interior Department’s Office of Surface Mining and the Obama administration would do as promised and propose a rule change that would at least restore the rules in effect for decades. We can wait no longer while streams and the water that flows through our communities are destroyed and degraded.”

West Virginia Highlands Conservancy mining committee chair Cindy Rank said: “We cannot accept anything short of a rule that truly protects our irreplaceable headwater streams and the hydrologic regime that supports them. The 1983 Stream Buffer Zone Rule did just that by prohibiting activities that degrade the physical, biological and chemical nature of those streams. The 2008 Bush stream rule turned upside down that basic commitment to the health of our waters. Because the Obama Interior Department has failed to act, we’re asking the court to take action.”

The Bush repeal of a 1980s Stream Buffer Zone Rule allowed coal companies to place massive valley fills and waste impoundments directly into streams—thereby removing the “buffer” from the Buffer Zone Rule, the groups claimed. Based on U.S. Environmental Protection Agency estimates, mountaintop removal mining has destroyed or harmed 2,400 miles of Appalachian streams to date, they added.

The buffer rule has triggered years of wrangling. Last year, House Republicans focused on the issue as one of a series of coal-industry impacting federal rules and proposed rules that the GOP said is strangling the U.S. coal industry. 

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.