The Administration’s Efforts to Unwind Regulations Applicable to the Mining Industry Are Sure to Meet With Pushback.
By Jason Moore
As promised during the 2016 election, the Trump administration is steaming ahead in pursuing its deregulatory agenda, and President Trump has repeatedly stated his desire to clear regulatory burdens on the mining industry in particular.
However, to what extent various regulations will be rolled back – and the timing of that rollback – remains unclear. One thing is certain: The administration’s efforts to unwind regulations applicable to the mining industry are sure to meet with litigation from citizen and advocacy groups opposed to the regulatory rollback.
Executive Orders
In January, President Trump issued Executive Order 13771, “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs,” which mandates that whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it must identify at least two existing regulations to be repealed.
That Executive Order applies to the Occupational Safety and Health Act, the Mine Safety and Health Act and various environmental laws. Not unexpectedly, a lawsuit was filed in May by several advocacy groups challenging that Executive Order as unlawful. That lawsuit is still pending.
In February, President Trump issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which sets forth principles and requirements for each federal agency to evaluate and implement in the effort to lower regulatory burdens on industry. The Executive Order applies to all federal agencies, including the Department of Labor and the Department of Justice.
Specifically, the Executive Order directs each federal agency’s Regulatory Reform Task Force to identify regulatory actions that do the following:
(i) Eliminate jobs, or inhibit job creation;
(ii) are outdated, unnecessary, or ineffective;
(iii) impose costs that exceed benefits;
(iv) create a serious inconsistency or otherwise interfere
with regulatory reform initiatives and policies;
(v) are inconsistent with the requirements of the Information Quality Act or OMB Information Quality Guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.
The Executive Order further directs each agency’s Regulatory Reform Task Force to seek input and other assistance from entities significantly affected by existing federal regulations. Until recently, much of the work of the agency task forces has been behind closed doors. In some cases, federal agencies have even refused to name the people assigned to lead or participate in certain task forces. However, some task forces are now seeking input from the public on which regulations should be modified or even rescinded.
On June 28, for example, the Department of Justice’s Regulatory Reform Task Force published a notice in the Federal Register soliciting public suggestions through Aug. 14 for subjects meriting that task force’s attention. According to the notice, the task force sought public opinion for two purposes.
- First, the Task Force sought comments from the public on the various kinds of actions taken by the Department’s components that the public perceives to be regulatory in nature even if they are issued in a form other than rules promulgated upon notice and comment. For purposes of this inquiry, the public may perceive an action to be regulatory in nature if it imposes binding requirements on any person or entity outside the federal government or if it states criteria that a Department component will use to assess compliance with such a binding requirement.
- Second, the Task Force sought suggestions from the public for specific regulatory actions previously taken by the Department that should be repealed, replaced or modified, consistent with applicable law. In particular, the Task Force welcomed specific comments that identified regulatory actions that meet the criteria as proscribed in Executive Order 13777.
Whatever course the Trump administration’s deregulatory agenda will ultimately take, it will undoubtedly be contested in court, as we saw with the legal challenge to the “one in, two out” Executive Order and as we just saw when the D.C. Court of Appeals struck down a delay proposed by the Environmental Protection Agency (EPA) in implementing methane rules for the oil and gas industry passed under the Obama administration.
In addition to litigation challenging the Trump administration’s deregulation efforts, other factors may complicate the administration’s efforts to unwind regulatory burdens on the mining industry. In particular, the slow pace at which the President has made key political appointments could delay the administration’s deregulatory agenda.
At the EPA, for example, the chief target of many deregulators, Administrator Scott Pruitt is working with very few politically appointed deputies. Many regulatory agencies like the Occupational Safety and Health Administration (OSHA) and others at the Department of Labor continue to operate without agency heads.
Without political appointees, there is no one to manage the process of deregulation. Civil servants at the agencies are not going to be enthusiastic about rolling back the regulatory efforts they had previously worked to put in place.
Making Progress
Despite these difficulties, the Trump administration has made some progress in undoing burdensome regulations targeting the mining industry. In February, for example, President Trump signed legislation under the Congressional Review Act quashing the Office of Surface Mining’s Stream Protection Rule, a regulation passed in the final months of the Obama Administration designed to protect waterways from coal mining waste.
There is little doubt that the mining industry has been plagued by an onslaught of burdensome regulations in recent years, and any regulatory relief would be welcomed. Expectations were high when President Trump was elected along with Republican majorities in the House and Senate. However, unless something changes, expectations may have to be scaled back.
We can and should play a role in this process. We are our own best advocates. When agency task forces publish notices in the Federal Register seeking public comments, it is yet another opportunity to make our voices heard. However, if we don’t take advantage of it, we could ultimately end up blaming ourselves for missing an opportunity. The bottom line is, if we don’t start submitting comments, no one else will do it for us.
Jason Moore is senior counsel in the Denver office of Husch Blackwell. He is an environmental and natural resources lawyer who focuses on helping energy companies navigate a wide variety of environmental issues, including permitting, enforcement, land use, government relations, chemical regulatory issues, Superfund and RCRA liability, and environmental due diligence in property and M&A transactions. He can be reached at 303-749-7295 or [email protected].