American Miners Start to See Federal Relief

Steve Fiscor

To say U.S. President Donald Trump has shaken things up would be the understatement of the year. While much of the world is consumed with the flurry of activity that surrounds him, his team is advancing the ball on several fronts as far as his promise to roll back some of the regulatory overreach. Two recent decisions from the U.S. Environmental Protection Agency (EPA) were welcomed by the mining business.

If they didn’t have a seat at the boardroom table, environmental activists certainly had a profound influence on decision making at the EPA during the last administration. Operating outside the regulatory process, these environmental nongovernmental organizations (NGOs) used lawsuits that sought to force federal agencies — especially the EPA — to issue regulations that advanced their interests and priorities, on their timelines. They would sue the agency and ask the court to compel it to take certain steps, either through change in a statutory duty or enforcing timelines set by the law. The EPA would acquiesce through a consent decree or settlement agreement, which affected the agency’s obligations under the statute.

EPA Administrator Scott Pruitt is quite familiar with how these groups operate and the rules have now changed. Fulfilling a promise to end the practice of regulation through litigation, he issued an agency-wide directive designed to end “sue and settle” practices. “We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress,” Pruitt said. “Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.”

With the directive, Pruitt wants to ensure the EPA increases transparency, improves public engagement and provides accountability to the American public. It calls for the timely publication of intents as well as complaints or petitions for review regarding environmental regulations. The directive also includes any states and/or regulated entities affected by potential settlements or consent decrees. The agency will no longer pay attorney’s fees and litigation costs when settling with those suing the agency.

More recently, the EPA decided that new, financial responsibility requirements for the hard rock mining industry are unnecessary and duplicative. This decision stems from NGO litigation seeking to use the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to impose additional financial and regulatory burdens on the mining sector.

In 2009, several environmental groups sued the EPA, attempting to use CERCLA to subject classes of facilities within the hard rock mining industry to additional financial responsibility requirements. As a result, EPA conducted a rulemaking to determine if new requirements were needed and, in 2016, it proposed a fundamentally flawed policy that was not based on science.

At a time when the U.S. is import-dependent for many key minerals, it should be supporting domestic mining operations. These recent decisions will encourage a long-overdue investment.

Steve Fiscor, Publisher & Editor-in-Chief, E&MJ

As featured in Womp 2017 Vol 12 -