Publications

Regulation of the Mining Industry — The Past is Prologue

Spring 2004

Author: Edward M. Green.

Four Decades of Environmental Regulation

As the 2004 Presidential race begins in earnest, it is useful to keep in mind that modern regulation of the nation's mining industry is currently into its fourth decade under seven U.S. presidents. Indeed, the father of the modern regulatory state affecting the U.S. mining industry is none other than Richard Nixon. During his Administration the Federal Coal Mine Health and Safety Act of 1969 was enacted; the Environmental Protection Agency ("EPA") and Council on Environmental Quality were created; and the fundamental provisions of the Clean Air and Clean Water Acts were passed. Since then, as one experienced Washington, DC pundit has said, regulation of the mining industry has been like a pendulum, swinging forward and backward, but the pendulum is located on a moving platform which is always moving forward.

Although the direction in which that pendulum swings is not necessarily partisan in nature, the eight years of the Clinton Administration were generally characterized by an active regulatory and enforcement agenda — a swing forward — whereas the first three years of President George Bush's administration have seen the pendulum begin to swing back toward greater balance.

Thus, for example, at the Department of the Interior, radical Clinton Administration efforts to change longstanding interpretations of the Mining Law of 1872 administratively have been softened and legal attacks by environmental groups on longwall and mountaintop mining techniques have been thwarted or modified in their impact. At the Department of Labor, industry, labor, and federal partnerships have been developed to address some important miner health issues collaboratively, whereas the previous administration had focused on these issues almost entirely through enforcement. And at EPA, market-driven cap and trade policies for multi-pollutant control have been proposed in the Administration's "Clear Skies" legislation, and through creative use of existing authority under the Clean Air Act in a proposal for a cap and trade program for control of mercury from coal-fired electric generating units.

Indeed, in contrast to the previous Administration, the current Administration has been balanced in its approach towards issues affecting the mining industry, and generally favorable toward natural resources development, particularly the role of the U.S. mining industry as a staple of a strong economy.

The 2004 Presidential Race

Now that the 2004 race for the White House is moving into full swing, it is likely that three top-tier issues will determine the outcome of the election: (1) jobs and the economy; (2) homeland security, and (3) the war on terror and in Iraq. While the environmental community and its allies have, for some time now, generated a steady drumbeat of criticism of the Bush Administration's environmental record, polls generally show that environmental issues rank relatively low on the totem pole of voters' decisions to support candidates. The sensitivity of voters toward such issues is enhanced, however, when a case can be made that elected officials are aligned with industrial special interests.

Thus, environmental groups are pushing this "hot button" in an effort to defeat President Bush. For example, a new group, Environment 2004, was recently organized by former Clinton Administration environmental officials. Among the organization's board members are former EPA Administrator Carole Browner and former Interior Secretary Bruce Babbitt. At its inception this past October, the group issued a 60-page report "The Bush Environmental Record - An Unprecedented Assault on America's Health and Heritage." And a recent examination of the group's homepage at environment2004.org showcased a link to a January 13, 2004 New York Times editorial provocatively entitled "Decapitating Appalachia." Another example of how more established environmental groups are gearing up for the presidential election is the League of Conservation Voters' decision to devote most of its resources to its newly developed "Environmental Victory Project," which will zero in on the "battleground" states of Florida, New Mexico, Oregon, and Wisconsin. The League also took the unusual step of endorsing Senator John Kerry, in advance of the New Hampshire primary, an endorsement viewed by some as important to Senator Kerry's victory over Howard Dean in that key State. In the past this group had focused on Congressional races.

Perhaps most emblematic of an early effort to combine the hot-button industrial special interest issue with that of stronger environmental protection is the fire-and-brimstone speech given by Al Gore in New York City this past January. Entitled rather grandiosely "Al Gore Speaks on Global Warming and the Environment," the former Vice President and failed 2000 presidential candidate said:

The Bush Administration . . . has explored new frontiers in cynicism by time and time again actually appointing the principal lobbyists and lawyers for the biggest polluters to be in charge of administering the laws that their clients are charged with violating.

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[President Bush] is so eager to accommodate his supporters and contributors that there seems to be very little that he is not willing to do for them at the expense of the public interest.

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Indeed, it seems at times as if the Bush-Cheney Administration is wholly owned by the coal, oil, utility and mining companies.

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While President Bush likes to project an image of strength and courage, the truth is that in the presence of his large contributors he is a moral coward — so weak that he seldom if ever says 'no' to them on anything — no matter what the public interest might mandate.

These sorts of comments are likely to set the tone for debate on environmental issues by President Bush's opponents in the upcoming election.

What does all this mean for the mining industry? In the short term, at least, until the November election the Bush Administration will likely avoid making any decisions that can legitimately add fuel to the fire of environmentalists' rhetoric. Indeed, if decisions must be made, they are likely to be tilted more toward environmental protection than toward the balanced approach shown to date. However, should the electorate return President Bush to office for a second term, his Administration's generally supportive policies for the mining industry and overall balanced decisionmaking will likely continue.

On the other hand, what would the policies of a Kerry Administration be toward the U.S. mining industry? The Senator's website (www.johnkerry.com) provides some insights. Click into "Energy & Environment" and, in addition to the same sort of rhetoric preached in Gore's speech on global warming, you will find a promise to enter into a "Conservation Covenant" with the American people. The Covenant includes "tread[ing] lightly on the public lands . . . put[ting] new teeth into requirements that private companies who lease public lands return the land to its original state . . . [and that] royalties obtained from extracting resources from public lands [be reinvested] into protecting [these] lands." Senator Kerry also promises that "the U.S. will reengage in the development of an international climate change strategy to address global warming, and identify workable resources that provide opportunities for American technology and know-how."

With particular regard to coal, the Senator's website has a detailed energy plan. His coal "plank" is called "Making Coal Part of the Clean Energy Solution and Strengthen the Economy in States and Regions Engaged in Coal Production and Use." The plank calls for lowering of power plant emissions of Nox, SO2, mercury, and CO2. And it promises a $10 billion commitment devoted to "helping the coal industry . . . be part of America's energy future," through "new cleaner coal technology."

Whatever the outcome of the election, it is important to remember that, in the words of the earlier noted pundit, the regulatory pendulum is located on an always forward-moving platform. More specifically, the fundamental underlying statutes put into place by President Nixon in the early 1970s remain the law of the land. In fact, they have been strengthened over the years with passage, in 1977, of the Surface Mining Control and Reclamation Act and the Federal Mine Safety and Health Act, and in 1990, by the Clean Air Act Amendments, among many others. These legal obligations imposed on the mining industry by the modern regulatory state, coupled with the environmental expectations of the American people, will maintain the forward progress of the swinging pendulum. The best that can be hoped for and expected is for the pendulum's swings to be as measured as possible.

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922
Email: egreen@crowell.com