On Feb 2nd, for the second time in as many weeks, the U.S. Senate, invoking the Congressional Review Act (CRA), voted to repeal (i.e. “disapprove”) the Department of the Interior’s (DOI) Office of Surface Mining and Reclamation and Enforcement (OSMRE) Stream Protection Rule (published on December 20, 2016 at 81 Fed. Reg. 93066). The Obama-era rule, issued under the Surface Mining Control and Reclamation Act after being under development for over seven years, was adopted for the stated purpose of ensuring surface water quality adjacent to coal mining operations was maintained, in comparison to pre-mining conditions, during and after the mining activities took place and included permitting, monitoring, and mitigation requirements.
The vote on H.J. Res. 38 passed 55-45, roughly along party lines with the exception of Democratic Senators (Sens. Joe Manchin (D-W.Va.), Heidi Heitkamp (D-N.D.), Joe Donnelly (D-Ind.) and Claire McCaskill (D-Mo.)) from “coal-states.”
With the CRA prohibiting any federal agency from developing any "substantially similar" regulation, and the George W. Bush administration's Stream Buffer Zone Rule having been previously struck down by a federal judge, it is unlikely that the current and future administrations will be able to craft a rule with similar intent and scope; for now, then, DOI will have to rely on Reagan-era standards to address water quality impacts related to coal mining.
Under the CRA, enacted in 1996, Congress can “disapprove” a regulation issued as a final rule by a federal agency within the last 60 legislative days of the previous Congress by issuing a joint “disapproval resolution” within 60 legislative days of the regulation being referred to the current Congress. Thus, any rule finalized and made effective within the noted timeframe is ripe for the new Congress to take up. The CRA has rarely been used since it was enacted, and then only once successfully, in part because the President can veto the disapproval, but also because each referral needs to be taken on an individual basis and is allowed 10 hours of Senate floor debate, and thus can be very time consuming to use en masse. To simplify this process the House of Representatives recently proposed (through H.R. 21, its “Midnight Rules Relief Act of 2017”) to allow for "bundling" of rules; however it seems unlikely the Senate majority will vote on this bill out of fear of putting this tool into the minority party’s hands in the future and will instead stick to the normal order in advancing the joint disapproval resolutions. Based on the current floor schedule, it is unlikely that there will be time available to take on more than 15 rules and we suspect that those are being chosen carefully. While the number of measures to be taken up is uncertain, with the House of Representatives voting 221-191 in favor of H.J. Res. 36 on Friday, February 3rd, what is likely is that the Bureau of Land Management’s (BLM) ‘‘Waste Prevention, Production Subject to Royalties, and Resource Conservation’’ Rule, commonly referred to as the “Methane Rule”, is next up on the chopping block – with BLM’s Planning 2.0 rule soon to follow.