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Professor Sidney Shapiro tells Bloomberg BNA odds of saving stream protection rule are long

Sidney A. Shapiro, law professor at Wake Forest University and vice president of the Center for Progressive Reform, testifies on regulatory reform before the Senate Homeland Security and Government Affairs Committee.  Sept. 16, 2015, Washington, D.C.  Photo:  Jay Mallin

Sidney A. Shapiro, law professor at Wake Forest University and vice president of the Center for Progressive Reform, testifies on regulatory reform before the Senate Homeland Security and Government Affairs Committee. Sept. 16, 2015, Washington, D.C. Photo: Jay Mallin

Professor Sidney Shapiro was quoted in the following original article, “Stream Protection Rule Declared (Almost) Dead: Now What?,” written by Stephen Lee and published by Bloomberg BNA on Feb. 14, 2017.

Environmental groups and their allies in Congress are pondering what they can to do save the stream protection rule, soon to be nixed by President Donald Trump.

But none of the options appear promising, leaving environmental advocates at a loss.

On Feb. 16, Trump is expected to sign a Congressional Review Act resolution nixing the stream rule (RIN:1029-AC63), issued in the last days of the Obama administration, which limits the placement of mining waste in streams.No Confidence in States

Perhaps the most direct solution is for states to step up the enforcement of stream protection within their own borders, regardless of what federal law requires. But few defenders of the stream rule believe that will happen, despite congressional Republicans’ many assertions that the states are doing a good job of controlling pollution.

“I don’t have any confidence that our state would do a good job,” Rep. John Yarmuth (D-Ky.), who argued vehemently against the CRA vote on the House floor, told Bloomberg BNA. “They’ve talked a good game about how they’re up to the task of protecting the environment and protecting our citizens, but they haven’t done it yet. I wish I could have more confidence, but I haven’t seen it.”

The situation is much the same in other coal states, such as West Virginia, said Erin Savage, a campaign coordinator at advocacy group Appalachian Voices. Last month, the Office of Surface Mining Reclamation and Enforcement detailed a range of shortcomings in West Virginia’s state program, including broad failures to enforce environmental regulations.

Option No. 2: Litigation

Environmentalists could also try to challenge the CRA resolution in court. But no such plans are in the works yet, and the odds of success are long, because courts have historically approved congressional legislation “as long as there’s some conceivable rational basis for it,” said Sidney Shapiro, an administrative law professor at Wake Forest University.“The court views it as its role not to get in the way of policy judgments by Congress,” Shapiro told Bloomberg BNA.

Nor could environmentalists realistically argue that the CRA vote violated the concept of separation of powers, because Congress has already established its right to overrule regulations, with or without the CRA, according to Shapiro.

The only new wrinkle the CRA introduces is that it speeds the process along, but Congress has the right to set its own rules for passing legislation, Shapiro said.“It’s one thing to challenge an agency action, but quite a heavy lift to challenge a law passed by Congress,” agreed Celeste Monforton, a former Labor Department policy analyst.

“It really is kind of game over,” Peter Morgan, staff attorney at the Sierra Club, told Bloomberg BNA.

Testing ‘Substantial Similarity’

The other remaining fixes rely on Democratic control of both Congress and the White House, meaning they’re not viable options until at least 2020.One route would involve a future OSMRE testing the language in the CRA that forbids any administration from ever again passing another rule that is “substantially the same.” That clause has never been tested—in large part because the CRA has only been used once before—so it’s not clear what does and what doesn’t count as substantially the same.

To some legal scholars, such as Rena Steinzor, a law professor at the University of Maryland, a substantially similar rule is anything that overlaps the old rule by 60 percent to 70 percent. That leaves plenty of wiggle room for a new administration to re-regulate, she told Bloomberg BNA.

For example, in the case of the only rule ever shot down by the CRA—a Clinton-era rule that regulated ergonomics in the workplace—a future Occupational Safety and Health Administration could have ducked the substantially similar clause by writing a more targeted rule that only applies to certain workplaces, according to Steinzor.

Were OSMRE to try that, a legal challenge would then be inevitable. The text of the CRA statute forbids judicial review of disapproval votes, but rarely do the courts honor such clauses, Steinzor said.

For agencies, one major obstacle is summoning the resources and political will to challenge the “substantially the same” clause, said Ross Eisenbrey, vice president of the Economic Policy Institute. It was the Obama White House’s lack of interest in another ergonomics rule that torpedoed efforts to challenge the substantially similar language, according to Eisenbrey, who served as OSHA’s policy director at the time of the 2001 ergonomics rule.

But that doesn’t mean a future OSMRE might not try it, Eisenbrey said.

“If this really is a clear winner of a rule and you have a President [Tom] Perez or a very progressive Democrat in office, maybe they would want to try it,” Eisenbrey said.

Congressional Mandate

Another long-term solution would see Congress passing a bill that either contains the stream rule or directs OSMRE to develop a new rule. Both options are viable and have been done before, Cary Coglianese, director of the Penn Program on Regulation, told Bloomberg BNA.

Yarmuth, however, said House Democrats haven’t had any discussions about a legislative fix since Congress voted to repeal the stream rule in early February.

White House spokeswoman Kelly Love told Bloomberg BNA Feb. 13 that she didn’t have information about when Trump would sign the CRA bill.

The White House did confirm, however, in a Feb. 1 policy statement that it opposes the stream rule. Further, Ben Keeler, a spokesman for fierce stream rule opponent Rep. Bill Johnson (R-Ohio), told Bloomberg BNA that Trump will sign the bill Feb. 16.To contact the reporter on this story: Stephen Lee in Washington, D.C., at stephenlee@bna.com

To contact the editor responsible for this story: Larry Pearl atlpearl@bna.com