Indiana Joins 11 Other States In Lawsuit Against The Office Of Surface Mining

Attorney General Hill: Regulations In Place Are On Unjust Overreach By Federal Government

INDIANAPOLIS, Ind. – Indiana Attorney General Curtis Hill today announced Indiana’s participation with 11 other states in a lawsuit against the U.S. Office of Surface Mining. The lawsuit alleges that regulations set in place by that office’s new Stream Protection Rule violate the Surface Mining Control and Reclamation Act, and thereby represent serious policy overreach by the federal government.

“This egregious overreaching effort by the Office of Surface Mining is a textbook-example of federal government overstepping its boundaries,” Hill said. “The enforcement of the Stream Protection Rule eliminates each state’s discretion. It is unlawful, and I will continue to fight the federal government’s attempts to impose arbitrary rules.”

Under the Office of Surface Mining’s Stream Protection Rule, all states are required to regulate coal mining by adopting and implementing a one-size-fits all set of regulations that govern stream buffer zones, fish and wildlife protections, and water quality standards. According to the multi-state lawsuit, the mandatory regulations are a violation of the Surface Mining Control and Reclamation Act, and the expansion of federal authority over each state exceeds the authority of congress.

Because land use regulation is a power constitutionally reserved to the States, if the new rule is permitted to stand, it will extend federal law beyond the limits of the Commerce Clause and effect a violation of the Tenth Amendment by commandeering state government to carry our federal policy. According to the complaint, “[t]he Rule unconstitutionally offers the States a choice between allowing the Office of Surface Mining to restructure their surface coal mining economy and implementing federal policy. The Office has unlawfully leveraged the States’ existing entitlement—their constitutionally reserved and statutorily protected authority over land use management and mining regulation—to coerce the States into implementing a federal program.”

Indiana – along with Ohio, West Virginia, Alabama, Alaska, Arkansas, Colorado, Kentucky, Missouri, Montana, Texas and Wyoming – was not given an opportunity to assist the Office of Surface Mining in its drafting of the Stream Protection Rule, a requirement under the National Environmental Policy Act. In bypassing consultation, the Office of Surface Mining essentially stripped each state of the opportunity to carry out their respective responsibilities to regulate coal mining in accordance with local needs and circumstances.

Hill added that enacting the Stream Protection Rule without engaging each state during the drafting process only leaves unrealistic standards.

The Stream Protection Rule places a heavy burden on each state, as well as the coal industry. The lawsuit alleges that the Stream Protection Rule effectively makes mining coal, one of our nation’s base fuel supplies, impossible in many areas of the United States, and at the very least imposes standards that are more detrimental in some areas that others, owing to geographic and climatic variations among regions of the country.

The lawsuit asks the court to declare that the Rule is unlawful because it: (1) violates the Surface Mining Act; (2) is arbitrary and capricious in violation of the Administrative Procedure Act; (3) exceeds Congress’s powers under the Commerce Clause; (4) interferes with state sovereignty in violation of the Tenth Amendment; (5) was promulgated in violation of the National Environmental Policy Act; and (6) was adopted in violation of the Consolidated Appropriations Act of 2016.  It also seeks injunctive relief prohibiting federal agencies from enforcing or otherwise proceeding on the basis of the Rule.