Kentucky Joins Legal Fight Against the Stream Protection Rule

Frankfort, Ky. (Jan. 17, 2017) – Kentucky today joined 12 other states in petitioning the United States District Court, in the District of Columbia, to enjoin the U.S. Office of Surface Mining Reclamation and Enforcement (OSMRE) from enforcing the Stream Protection Rule it finalized late last year.

The complaint, filed today, alleges that the Stream Protection Rule fundamentally rewrites the Surface Mining Control and Reclamation Act (Act) by mandating that states follow a one-size-fits-all federal rule for what the Act designates as primarily the states’ responsibility in regulating coal mining and reclamation operations.

The legal filing also alleges that OSMRE adopted the Rule without providing for any meaningful participation by states and that it violates the Surface Mining Act, the Administrative Procedure Act, the National Environmental Policy Act, the Consolidated Appropriations Act of 2016, and the U.S. Constitution.

Other states joining the in the litigation are: Indiana, Ohio, West Virginia, Alabama, Alaska, Arkansas, Colorado, Missouri, Montana, Texas, Utah and Wyoming.

The Kentucky Energy and Environment Cabinet maintains that the Rule illegally interferes with states’ rights to govern without undue interference from the federal government.  If allowed to stand, the Rule would also have a devastating impact on Kentucky’s coal industry and the thousands of miners employed in that industry.

“This Rule, adopted by the federal government at the eleventh-hour, is not environmentally needed, conflicts with existing protections, and will do great harm to not only the state’s coal industry but to Kentuckians across the Commonwealth,” said Secretary Charles Snavely.

According to the Cabinet, the Rule would dramatically expand the requirements of the federal Surface Mining Control Reclamation Act (SMCRA), while providing no additional environmental benefit beyond that currently provided by SMCRA. It would impose unreasonable and unjustifiable restrictions on the ability of companies throughout the United States to mine coal and to provide high-paying jobs and inexpensive energy to the citizens.

The Rule, as written, would require expensive baseline monitoring for water and the biological environment without any corresponding benefit.  It would make it more difficult, if not impossible, for mining companies to obtain required bonding for their mining operations. And it would create an unfunded mandate for Kentucky, with an estimated $3 million in additional costs annually including the need for additional staff and training.

The U.S. Department of Interior promulgated this Rule without allowing Kentucky and other states timely access to information that went into its adoption and without allowing appropriate input from the states on a variety of issues implicated by the Rule. The Cabinet repeatedly requested, through formal correspondence to Office of Surface Mines (OSM), all technical reports, data analysis, comments received, and other important information pertaining to then-proposed Stream Protection Rule but failed to receive a response.

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