Reversal of 3809 rules makes sense

The repeal of several provisions in the U.S. Department of the Interior’s Surface Management Regulations — usually called the “3809 Regulations,” for their place in the Federal Register — represents a long-overdue return to sanity in U.S. mining regulation.

The regulations, an end-of-term gesture by the Clinton presidency to its influential anti-mining lobby, had been touted as a necessary revision of rules from the bad old days — in this case, 1980, although others talked as if the rules were part of the Hard Rock Mining Act of 1872.

The revisions centred on what became known as the “irreparable harm” provision. This gave the secretary of the Interior the opportunity to shut down any new mineral-development project whenever opponents of the project claimed there might be irreparable harm to the environment — a claim anti-mining groups invariably make as a first, not a last, resort.

Under the rubric of “unnecessary and undue degradation,” the secretary of the Interior was empowered to veto any proposed development on federal lands. Political apologists for the new rules tried to whitewash this as “a chance for the government to consider other uses of land besides mining,” even though the 1980 rules obliged the Department of the Interior to do exactly that.

The industry rightly objected that any mine has permanent effects on the landscape, a type of “irreparable harm” that would leave every project open to a veto by the secretary. That secretary would not have been the openly anti-mining Bruce Babbitt, but it was plain that anti-mining groups were ready to use the new rule as a hammer against mining projects in general.

The irreparable harm provision was starkly different from the regulations’ earlier wording, which defined “unnecessary and undue degradation” as a departure from the measures taken by prudent operators, as a failure to mitigate damage, or as a failure to comply with environmental regulations.

That last phrase is a key to the industry’s objections: mineral development projects in the U.S. had to meet existing federal and state environmental standards. Those standards — whatever the anti-mining lobby and posturing politicians might want the public to believe — were not mired in the 1870s, or even the 1980s, but were a constantly evolving matrix of federal and state statute law and regulation. A study by the National Academy of Sciences, commissioned by the U.S. Congress, determined that the existing regulatory framework was the most effective route to follow in ensuring that mining projects do the least possible damage to their surroundings.

Congress agreed, putting a provision in the Interior’s Appropriations Bill for the year 2000 that required that any new regulations be “not inconsistent” with the Academy’s recommendations. That sparked a debate between Interior lawyers on the one hand and Congressional counsel and industry representatives on the other, over the exact meaning of “not inconsistent,” which — apart from calling to mind the lexicographical uncertainty of a highly placed member in the previous administration — illustrated the lengths to which the in-house counsel of a government agency will go to ensure the agency gets its way whatever a legislature might say. But court challenges to the rules, by the National Mining Association and the government of Nevada, made it clear that the Interior was not going to have a free hand in imposing the Bruce Babbitt vision of mineral development in the West.

The Department of the Interior now seems ready to put that wrangle to rest by restoring the old rules, which may have been the more sensible course in the first place. Foes of the industry reflexively claim that mining gets a regulatory free ride in the western U.S. That is not so, and they know it. Reversing the Clinton-era changes at least puts that into perspective.