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14 AGs petition court over federal mining rule they argue violates states’ rights

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Attorneys general from multiple states for years have been petitioning courts and suing to block federal agency rules from going into effect, arguing the agencies promulgating them are exceeding their statutory authority. The latest petition makes a similar argument about a final rule issued by the U.S. Department of the Interior’s Surface Mining Reclamation and Enforcement Office (OSMRE) related to state regulatory oversight of coal mining.

Fourteen attorneys general filed a petition for judicial review with the U.S. District Court for the District of Columbia asking it to vacate the rule they argue seeks to strip states of regulatory authority delegated to them by Congress and the U.S. Constitution.

The petition was filed by the attorneys general of Indiana, West Virginia, Alabama, Alaska, Arkansas, Kentucky, Louisiana, Montana, North Dakota, Ohio, Texas, Utah, Virginia and Wyoming. Several state agencies are also petitioners.

Secretary of the Interior Deb Haaland, two OSMRE directors, and both federal agencies were named as respondents.

The petition argues the rule, which went into effect May 9, exceeds Haaland’s statutory authority, is arbitrary, capricious, an abuse of discretion and inconsistent with law. The AGs asked the court to declare the rule unlawful, vacate it and grant temporary relief pending the outcome of litigation.

The OSMRE Final Rule amends the Surface Mining Control and Reclamation Act of 1977 (SMCRA), which gives states exclusive jurisdiction over regulating surface coal mining and reclamation operations with few exceptions. It also gives states the sole authority to issue permits and bonds; states also inspect mining sites and enforce regulatory requirements. The SMCRA only applies to non-federal and non-Indian land.

The law limits the Interior secretary’s mining regulatory authority with two exceptions: the secretary is authorized to issue a “Ten-Day Notice” to state regulatory authorities if there is “reason to believe” a regulatory violation exists and to take over a state regulatory program if the state fails to enforce it.

The OSMRE explains that it amended the law in its rule change to limit the sources of information to determine if a possible violation exists. It also changed its definition of “reason to believe,” which it says “is supported by its legislative history.” The OSMRE also said it made the changes because it “observed instances in which requesting and considering information from” state regulatory agencies resulted in delays.

It made the claim after the Interior secretary and OSMRE officials previously acknowledged that delays occurred at times because state regulatory agencies needed weeks or months to perform complex investigations, including because of inclement weather, the lawsuit notes.

But the real reason OSMRE officials changed the definitions of the exceptions was to limit states’ rights, the AGs argue. The final rule “is dismissive of consequences for federalism,” the complaint states.

Indiana Attorney General Todd Rokita, leading the coalition, said, “Simply put, this new rule is unlawful.” It intrudes on the states’ “rightful authority under the American system of federalism. We’re suing to uphold the proper balance of power between the individual states and the federal government and to prevent another unjustified assault by the Biden administration on coal.”

The rule “proposes to overthrow the Act’s deference to States” by issuing ten-day notices, the complaint states. It also subjects “state decisions over which the Act affords States exclusive jurisdiction, such as permitting decisions, to federal oversight through ten-day notices.”

OSMRE also “seeks to make the federal government the regulator of first resort,” stripping states of their regulatory authority, the complaint states.

The rule eliminates a key requirement that citizens must first contact state regulators with concerns before they can contact the federal government. It also imposes “inflexible, arbitrary timelines on states to complete complex investigations without regard for facts on the ground, setting up federal regulators to swoop in,” the complaint states.

The AGs represent state regulatory agencies that oversee surface coal mining operations and are responsible for enforcing the SMCRA within their states. They also pointed out that these agencies received positive reviews from OSMRE officials.

Last year, OSMRE officials said Indiana’s Department of Natural Resources “administers its program in a way that effectively protects citizens and the environment from adverse impacts resulting from surface coal mining activities,” Rokita said.

OSMRE officials also said Montana’s program “had no regulatory problems” and Montana “takes citizen complaints seriously,” Montana AG Austin Knudsen said. OSMRE found “Montana DEQ appropriately responded to complainants in a timely manner consistent with applicable rules.”