By Bill Reilly and Taylor Kuykendall

Memorandum Decision and Order of Dismissal by United States District Court -Columbia on February 20 regarding Coal River Mountain Watch et al. Filings.

Environmental groups are cheering a Feb. 20 court ruling striking down a 2008 rule they say weakened regulations by the U.S. Office of Surface Mining Reclamation and Enforcement intended to protect waterways from coal mining activities.

Nancy Gravatt and Luke Popovich, representatives of the National Mining Association, told SNL Energy Feb. 21 that they were disappointed in the ruling by the U.S. District Court for the District of Columbia that vacated the George W. Bush administration's stream buffer zone rule. Gravatt and Popovich both said the industry is reviewing the decision to determine future action.

OSM asked the court to vacate and remand the case

A lawsuit seeking repeal of the 2008 rule was originally filed in 2009, but environmentalists held off further action in hopes that the Obama administration would provide a favorable rewrite of the rule. The process, however, has been steeped in controversy and drew attacks, largely from Republicans and some coal-state Democrats.

The OSM announced in late 2013 that it was putting off a rewrite of the rule until August 2014.

The controversy arises from the Surface Mining Control and Reclamation Act of 1977, under which the OSM provides a 100-foot buffer zone around streams. The 2008 rule retained the buffer zone requirement but established different criteria than those in the 1983 rule for obtaining a waiver of the stream buffer zone requirement.

In promulgating the 2008 rule, the OSM determined that the rule would have no effect on listed species or critical habitat under the Endangered Species Act, or ESA, and therefore it did not initiate consultation with the U.S. Fish and Wildlife Service, or FWS. The court's decision calls the OSM's failure to initiate such a consultation, required under the ESA, a "serious deficiency" and not just a procedural error.

During the proceeding, the OSM admitted that it violated the law by not initiating a consultation on the rule and asked the court to vacate the rule on that basis and remand it to the OSM.

The NMA and other coal interests supported the 2008 rule, which although on the books is effective only on those lands where the OSM is the regulatory authority. Like the OSM, the NMA asked the court to remand the rule but with instructions for the OSM to do what it had failed to do in the first place: initiate consultation with the FWS.

The court sided with the OSM in deciding to not only remand the rule but vacate it.

Despite industry protest, the court determined that vacating the rule will have only "limited disruptive consequences." According to the decision, "This is because no state with an approved regulatory program has amended its program to reflect the 2008 Rule. Moreover, it may be more disruptive to retain the 2008 Rule in effect. OSM is in the process of developing a new stream protection rule and it would be unnecessarily costly and burdensome for OSM to administratively withdraw the 2008 Rule through notice and-comment procedures when OSM is already working on a new rule to replace the 2008 Rule."

The court deemed it unnecessary to explore other legal claims presented in the case by environmental groups.

Critics of a rewrite of the rule say it is likely to cost the industry thousands in jobs and billions in revenue.

Representatives of coal industry associations in West Virginia and Kentucky, where the rule is likely to have the largest impact, did not immediately respond to requests for comment.

Environmentalists celebrate court's repeal of 'midnight rule'

Neil Gormley, an attorney for Earthjustice, said the decision will restore the "longstanding stream protections" that were provided by the 1983 Ronald Reagan administration rule. Though celebrating a victory, environmental groups say they continue to watch out for a proposed legislative attempt that would undo their progress made in court.

"Right now, there's an effort in the U.S. House of Representatives to force states to adopt this same flawed rule," Gormley said in a news release. "The House will soon vote on H.R. 2824, a cynical attempt by friends of coal and polluter allies in Congress to take this weak, confusing, and contradictory rule and make it a centerpiece of the surface mining law. We hope this clear court decision puts that idea to rest."

Mary Anne Hitt, the Sierra Club's Beyond Coal campaign director, told SNL Energy that the "grassroots groups" behind the efforts to vacate the Bush-era rule are "pleased that court has found Appalachian rivers and streams need to be better protected from coal pollution," particularly in light of major recent environmental threats.

"Recent spills in West Virginia and North Carolina have made it abundantly clear that this nation is not doing enough to safeguard our waterways from coal pollution," Hitt said. "This decision to strike down the Bush-era repeal of the buffer zone rule is a step in the right direction."

Vivian Stockman is project director with the Huntington, W.Va.-based Ohio Valley Environmental Coalition, a group that was a part of the legal action. She said the organization is happy to see 1983 stream protections back on the books but also added that recent coal industry-related spills in West Virginia "profoundly illustrate" a continued need to push for effective enforcement.

"Ignoring laws and burying streams doesn't just harm wildlife," Stockman told SNL Energy. "People living near these operations face health-threatening and life-shortening levels of pollution."

Rob Goodwin with Coal River Mountain Watch in West Virginia told SNL Energy that implementation of more stringent standards of stream protection would still largely be up to the states. He said he was doubtful the decision will have much immediate effect on mine regulation, particularly because interested parties are awaiting the Obama administration's rewrite of the rule.

Vernon Haltom, executive director of Coal River Mountain Watch, reiterated his organization's call for federal officials to revoke West Virginia's state-level authority to regulate coal mining over alleged deficiencies and to pass the Appalachian Community Health Emergency Act, an effort to stop mountaintop removal mining pending further study of its health impacts.

"Unfortunately, we are still stuck with regulators who refuse to enforce the previous rule, who refuse to take citizens' complaints seriously, and who refuse to acknowledge the growing scientific evidence that mountaintop removal harms human health," Haltom said.

The case is National Parks Conservation Association v. S.M.R. Jewell (09-00115).

Given the ruling here, the court dismissed as moot a parallel case in which nine environmental groups asked the same court to vacate both the 2008 rule and the concurrence of the U.S. Environmental Protection Agency in the rule.

That case is Coal River Mountain Watch v. S.M.R. Jewell (No. 08-02212).