Alaska Joins Multi-State Challenge to Stream Protection Rule
(Despite repeated requests for nuance, federal agency took “one-size-fits-all” approach}
January 17, 2017 JUNEAU – Alaska joined Ohio, West Virginia, Alabama, Arkansas, Colorado, Indiana, Kentucky, Kentucky Energy and Environment Cabinet, Missouri, Montana, Texas, Utah, and Wyoming in filing a complaint in the United States District Court for the District of Columbia today challenging the U.S. Department of the Interior’s Stream Protection Rule based on both the process by which it was developed as well as the content of the rule. Issues raised by the states include allegations that the rule exceeds the federal agency’s statutory authority, infringes on states’ constitutional sovereignty, and is otherwise arbitrary and capricious. At the same time, Attorney General Jahna Lindemuth joined several other attorneys general in sending a letter to Congress urging it to consider using the Congressional Review Act to remedy this problematic rulemaking.
“Within the last few weeks, federal agencies have taken multiple actions that impede responsible resource development in our great state,” said Governor Bill Walker. “This is one of the worst. I sincerely hope that Congress will use its power to overturn it. If not, we are filing the lawsuit to fight it.”
On December 20, 2016, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSMRE) released the final version of the “Stream Protection Rule”, which will be implemented January 19. Initially intended to address impacts to intermittent and perennial streams, OSMRE expanded the rule to reach far into the states’ permitting processes, including the process the states use to grant a permit, the types of reclamation required, and even how operations have to be bonded.
Under the Federal Surface Mining Control and Reclamation Act (SMCRA) states may obtain primacy jurisdiction over regulation of coal mining activities. Alaska obtained primacy in the 1980s with implementation of the Alaska Surface Coal Mining Control and Reclamation Act (ASCMCRA). The Alaska Department of Natural Resources (DNR), with assistance from the Alaska Department of Law, submitted comments on the draft Stream Protection Rule in October 2015. DNR actively sought to provide input on the rule through meetings with Assistant Secretary Schneider of the Department of Interior, and letters to the secretary and the federal Office of Management and Budget.
“Despite repeated requests from states and direction from Congress, the federal agency failed to adequately consult with the states on the rule,” said DNR Commissioner Andy Mack. “The rule is inappropriately ‘one size fits all’. Case in point—Alaska’s unique geography and environment were clearly not considered.”
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