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Legislative and Regulatory Update

June 2009 by Scott Harn

There were several bills in the works at press time that will negatively impact mining should they succeed.

• California suction gold dredging
In California, the State Senate is considering Senate Bill 670. The bill would place a moratorium on suction gold dredging in California until the Department of Fish & Game completes a court-ordered Environmental Impact Report to update dredging regulations.

Also in California, the Karuk Tribe and the Center for Biological Diversity, along with several Fishing organizations, are scheduled to appear on June 9 in Alameda County Superior Court. This is yet another lawsuit against the California Department of Fish & Game to force a halt to suction gold dredging in the state following numerous failed attempts in the courts and legislature.

• Water rights
On the federal level, Senate Bill 787 is being considered by the Senate Environment & Public Works Committee. S 787, deceptively titled the “Clean Water Restoration Act,” would take away control of waters and waterways from state governments and hand it over to the federal government. The bill would define “waters of the United States” to include wetlands, intermittent streams, playa lakes, prairie potholes, sandflats, mudflats, ponds, meadows, sloughs—basically, any water that does not come out of a pipe.

In a 2006 report prepared by the staff of Congressman James Oberstar, chair of the House’s Transportation and Infrastructure Committee, the goal is plainly stated—to control non-point water sources through use of the Clean Water Act.

S 787 would create jobs for environmental activists and attorneys, while putting up roadblocks to agriculture, timber, mining and all other forms of development. Oberstar is expected to introduce a companion bill to S 787 in the House.

• Wilderness
Representative Carolyn Maloney (D-New York) reintroduced the Northern Rockies Ecosystem Protection Act (HR 980) earlier this year, but the Obama administration does not seem enthusiastic.

The bill would place millions of additional acres off-limits, including 9.5 million acres in Idaho, 7 million acres in Montana, 5 million acres in Wyoming and 1.25 million acres combined in Oregon and Washington.

Michael Nedd, acting deputy director at BLM, stated, “…we are concerned that certain designations in the bill may present serious conflicts with uses that may be of importance to the public.”

HR 1925 and companion bill S 799 are still pending. These bills would designate over 9 million acres as wilderness across the West.

• Climate change
Speaking of carbon emissions, debate continues over climate change legislation, as members of the Democratic Party seem to have reservations about some aspects of the cap-and-trade plan and the House’s version of climate legislation was finally released.

The original plan was to raise $646 billion by auctioning permits to industry, which would then be traded on the open market, but the House bill aims to give away all but 15 percent of the permits. A 20 percent reduction in carbon emissions by 2020 that was promoted initially was reduced to 17 percent. Another lofty goal of obtaining 25 percent of electricity from renewable sources by 2025 was scaled back to 15 percent.

The bill looks more like another stimulus package in some respects. It would establish incentives for consumers to trade in inefficient cars and trucks in exchange for a $3,500 taxpayer-funded voucher toward a new vehicle; however, it appears that only a 1-mile-per-gallon increase would be necessary to qualify in some circumstances.

The bill is far from its finished stage. Republicans have a long list of amendments they plan to introduce. The Senate still needs to pass their own version of climate change legislation, and then the two bodies would have to meet and reach an agreement.

We will keep you posted on the pending bills, and updates will be published on our website between issues. Updates may be found at www.icmj.com; click on “Resources” and then “Pending Rules and Regulations."

• Two Bush rules left intact
Newly installed Secretary of Interior Ken Salazar said the new administration will not use Endangered Species Act (ESA) decisions to set climate policy.

Environmental groups had hoped to utilize the Endangered Species Act as another tool to implement broader restrictions on greenhouse gases.

In December 2008, the Bush administration established a “special rule” declaring that the no action outside the Arctic region could be considered a threat to the bear under the law. Salazar announced he will not eliminate or modify the rule.

“…the Endangered Species Act is not the proper mechanism for controlling our nation’s carbon emission,” said Salazar.

Salazar also reaffirmed another Bush decision to delist the gray wolf as a threatened species in all states except Wyoming.

Environmental activist group Defenders of Wildlife promised to challenge both decisions in court. House Speaker Barbara Boxer (D-California) also stated publicly that she disagrees with the polar bear decision.

by Scott Harn

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