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SALT LAKE CITY — There are about 200 rules and regulations passed by the Obama administration that are potentially among the walking dead, ripe for repeal under a 1996 law used last week by Congress for the first time in 16 years.
The first Obama rule to die under the authority of the Congressional Review Act was the Stream Protection Rule, axed Thursday by a GOP-dominated Congress reacting to what they say is federal government overreach.
Rep. Rob Bishop, R-Utah and chairman of the House Committee on Natural Resources, said the rule governing coal mining operations near streams and waterways was costly, redundant to what states are already doing and an overreach of the agency's authority.
Next up? The Bureau of Land Management's rule requiring the capture of hydrocarbon emissions from oil and gas activity on federal lands and the agency's controversial Planning 2.0 rule challenged in a lawsuit by six rural counties, including Utah's Kane County.
The flaring rule, which the House voted Friday to repeal, will be taken up next week by the Senate. Bishop expects the BLM's planning rule to be before the House on Tuesday.
"There are potentially 200 rules to roll back," he said. "The limiting factor will be how many the Senate can actually take up. There has to be a pragmatic approach to how many."
Approximately 50 of those rules fall within the purview of Bishop's committee, which will prioritize the ones most suitable — and urgent — for action under the Congressional Review Act.
Prior to the Stream Buffer Rule's death last week, the only other time Congress acted via resolution to undo a presidential administration's rule was in 2001, when it repealed a labor regulation.
The law is rarely used because the circumstances have to be right. A new political party takes over, accompanied by a sympathetic Congress of the same party. Bishop said the previous administration set the stage for a flurry of legislative action because of the extreme number of executive branch regulations.
"A lot of people are saying the Trump administration can roll back rules and regulations, which is true, but this gives more certainty to the process," he said. "I want this to be done legislatively."
Governance by executive order results in wide swings on both sides of the pendulum — depending on what party is in the White House — and that upsets the balance of power, he added.
"That is the problem with the administrative state when you think you can do things with a pen in hand, with a telephone call, or with a tweet," he said. "Whatever is undone has to be done in an open process and it has to be done carefully, with consideration."
Bishop said the Congressional Review Act allows a rollback of the rules if a majority of the body finds them to be expensive to enact, or if they are redundant to regulations already in place or if the enacting agency went beyond its authority, or lacked the authority to begin with.
The Stream Buffer Rule, lauded by environmentalists but excoriated by the coal industry as a job killer, was under construction by the Office of Surface Mining, Reclamation and Enforcement since the first year Obama took office — 2009. But it wasn't until mid-December that the agency published the rule, which took effect the final day of Obama's last term.
"It literally went into effect the last day of his administration," Bishop said. "The rule was not about protecting streams but shutting down mines by adding additional costs and paperwork."
Critics argued that waterways were already protected from coal mining by a 1983 stream buffer zone regulation that prohibited mining companies from digging or dumping within 100 feet of any stream.
Protections exist too, Bishop argued, with states' enforcement of the Clean Water Act regulating unlawful discharges into streams.
Advocates pressed for the adoption of the rule, insisting the Reagan-era regulation was long overdue for updates due to technological advances in mining and the pressing need to require industry to monitor stream impacts during and after mining operations cease.
Bishop said the rule would have been applicable to only 7 percent of the nation's coal mines — mainly mountaintop operations in the Appalachians — but its requirements would have ruined an already crippled industry.
The BLM land planning rule is also facing sudden death because of widespread opposition by states in the West and rural counties that assert it dramatically diminished their influence in crafting land management plans.
Last month, Kane County joined five other counties in Western states in a lawsuit to set aside the rule as unconstitutional. They argued the rule violated the Federal Land Policy and Management Act's requirements that they have a seat at the table to coordinate in land use decisions.
Environmental groups applauded the rule because it allows planning on a landscape scale that goes beyond county or state boundaries and its adaptive management approach incorporates tenets of climate change.
As Bishop and his colleagues begin to identify those rules they say are ripe for repeal, Utah lawmakers are compiling their lists as well. The Commission on Federalism met last week, with instructions given to individual committee chairs to provide a blueprint where changes are necessary.
Nothing is off the table, said Rep. Ken Ivory, R-West Jordan.
"This is the opportunity to re-declare our independence."
The Utah commission is set to have its "wish list" of action on federal rules completed by Feb. 24.
