Divided Government

Here Are Some Mine Safety Law Predictions For 2019-2020.

Unless you’ve been off the grid (way off) or maybe off planet, you know that the political campaigns are over and the election results are (almost) final.

  • If you are a Democrat, you might be pleased that the 2018 midterm elections have returned control of the 2019-2020 House of Representatives to your party.
  • If you are a Republican, you might be pleased that your party retained control of the Senate and even gained a few seats on the Democrats.

Either way (and practically speaking), what you can expect from all of this is: (1) legislative gridlock; and (2) two years of sharply partisan oversight investigations and hearings in the House of Representatives.

In the movie “Charlie Wilson’s War,” Congressman Charlie Wilson is asked, “Why is Congress saying one thing and doing nothing?” He responds: “Well, tradition mostly.” It’s a good joke, primarily because it’s so close to the truth. In 2019-2020, tradition won’t be the only reason for legislative gridlock. With the House controlled by one party and the Senate controlled by the other, getting anything done in Washington over the next two years will be a lot more difficult. Not impossible, but more difficult.

In contrast, safe production at our nation’s mines will thankfully continue and hopefully increase, with help from the recent tax cuts, our healthy economy and President Trump’s efforts to increase exports and trade with other countries on more favorable terms.

Costly Delays

However, delays in the Trump administration’s promised regulatory reforms may be costly. There will be increased public criticism from mining opponents, and production cost increases from agency personnel seeking to institute their own initiatives, or those of their union and environmental allies. Agency personnel likely will seek to secure and grow their turf during a period of gridlock and potential agency cost cutting or reorganization.

Democratic Party union and environmental movement supporters will oppose regulatory “roll backs,” and reignite prior initiatives like mandated wage increases, labor law advantages and expanded health protection rules like diesel exhaust and chemical exposure controls. Pending mine safety issues that could be impacted include Obama era regulations on “pattern of violations,” and work area inspections at metal/nonmetal mines.

In addition Trump administration DOL/MSHA policy may seek to preempt expected Democratic criticism by “Blurring the Lines” (including expanded use of coal inspectors for non-coal mines), increased penalties, restricted penalty settlements and the expanded use of mine closure injunctions for tasks like penalty collections.

If the mining industry’s safety performance continues to improve, Congress likely will not focus on MSHA initially in 2019, but instead emphasize major issues that remain to be resolved regarding health care, immigration, government spending and ongoing investigations. But the chairman’s gavel is a powerful tool. Should the industry suffer a major disaster or the agency trigger extreme union complaints, it could result in House oversight hearings, with the potential to further prompt MSHA actions, counterbalanced with White House and OMB appeals.

Who Will Lead House Committees?

Democrats must elect a Speaker of the House of Representatives before making committee assignments or appointing committee chairs. Although many believe that Nancy Pelosi will become Speaker, there are more than 50 freshman Democratic members who have voiced their opposition to her leadership.

They argue that the House Democrats need fresher, younger and more liberal or progressive leadership. Rep. Pelosi is 78, and her top lieutenants, Minority Leader Steny H. Hoyer (Md.) and Assistant Minority Leader James E. Clyburn (S.C.) are 79 and 78, respectively. They want to stay on for at least two years, but many Democrats say they are looking for new leadership to counter President Trump’s rhetoric and prepare for the 2020 presidential election.

For the most part, the existing committee structure will become the basis of the new committee arrangements that the Democrats will put in place in 2019. What follows is a listing of the current and potential future leadership of the House and Senate committees that will exercise jurisdiction over mining-related issues:

The House Education and Workforce Committee

  • Bobby Scott of Virginia-03, Full Committee Chair.
  • Mark Takano of California-41, Workforce Protections Subcommittee Chair.

The House Energy and Commerce Committee

  • Frank Pallone of New Jersey-07, Full Committee Chair.

The House Appropriations Committee

  • Nita Lowey of New York-17, Full Committee Chair.
  • Rosa DeLauro of Connecticut-03, Labor and HHS Subcommittee Chair.

The Senate Health, Education, Labor and Pensions (HELP) Committee

  • Lamar Alexander of Tennessee, Full Committee Chair.
  • Johnny Isakson of Georgia, Employment & Workplace Safety Subcommittee Chair.

The Senate Appropriations Committee

  • Richard Shelby of Alabama, Full Committee Chair.
  • Roy Blunt of Missouri, Labor HHS Subcommittee Chair.

The good news is that despite all of the commentary to the contrary, a divided Congress is nothing new. We’ve seen it many times. Willingness and the ability to work across party lines will be required to get anything done in this environment.

We are not saying that all is lost from an administrative, regulatory and legislative perspective. Divided government provides unique opportunities because a large part of the administration’s economic development program is based, in part, on the revitalization of the mining industry – especially coal. There will be obstacles, but also chances for the industry to advocate their issues, in terms of oversight, before the Republican Senate leadership and within the administrative agencies.

Henry Chajet is a partner at Husch Blackwell LLP. He provides strategic counsel to clients, to prevent or reduce risks from situations of crisis and uncertainty, in environmental, employee health and safety, and antitrust law matters. He also represents clients in rulemaking and legislative proceedings, as well as in investigations and litigation involving unfounded enforcement actions. Chajet is a member of Husch Blackwell’s Technology, Manufacturing & Transportation team.

Robert Horn is a partner at Husch Blackwell LLP. With more than four decades of public and private sector experience, he provides insightful guidance on tariff, transportation and mining issues, particularly to international clients. Horn helps clients advance their public policy and regulatory interests in the areas of health and safety, energy, environmental and economic development. He can be reached at [email protected].

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