CNN's Thursday Report on Rescinded Coal Rule: Comical, But Also Woefully Incomplete

February 4th, 2017 3:33 PM

UPDATE, Feb. 7: On Feb. 5, Jake Tapper tweeted that "if you're concerned about things being 'incomplete' maybe consider adding into your post Manchin on same show response to rule." I attempted to find that video, and could not. If it was so important, and in the interest of balance, one would hope it would be part of the CNN video at the web link cited below — and it's not.

As Nicholas Fondacaro noted at NewsBusters Friday morning, CNN had a Thursday afternoon "You can't make this up" moment. While covering Congress's rescission of an Obama administration coal and mining industry rule, the network ran footage from the disastrous government-caused 2015 Animas River spill in Colorado and New Mexico in the background.

As pathetic and embarrassing as that element of CNN's report was, government regulation correspondent Rene Marsh's one-sided and incomplete report as the Animas River footage ran behind her and The Lead host Jake Tapper was arguably worse.

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On Thursday, Marsh regaled viewers about the dangers associated with the "repeal" of the regulatory euphemism known as the "Stream Protection Rule." (Strictly speaking, despite frequent misuse in press reports, laws are repealed; regulations are rescinded, revoked or eliminated.)

Marsh portrayed the matter as only involving data collection and reporting requirements. She critically failed to educate viewers about the 1996 law passed by a Republican Congress but signed by Democrat Bill Clinton which gave Congress the authority to so quickly do what it did.

For over 20 of the 60 seconds during which she spoke, CNN showed viewers footage from of the extensive coverage when and after the Animas River disaster occurred originating at KRQE in Albuquerque.

Here is CNN's related video web page, with the video captured at the 17-second mark:


In the video segment, Marsh burned excessive time on "data checks," and failed to educate viewers about larger matters:

Transcript (bolds are mine throughout this post):

RENE MARSH, CNN: The whole idea behind this is to protect streams from any sort of pollution that could come from coal and the mining industry. Essentially it requires these companies to do checks, data checks, to see how many chemicals, what's the level of chemicals within these streams that may be a by-product from the coal industry, the mining industry.

We do know that yesterday the House voted to repeal it, and the Senate, just a short time ago, also voted to repeal this regulation.

So environmentalists, obviously, very concerned. They're saying, "Well, if you're not collecting the data, you're not monitoring the chemicals in the stream, how will you know what the environmental impact will be from mining and the coal industry?"

So that's the concern there. But on the other side, you have the coal industry saying that this was too burdensome, it was a financial burden. It was, you know, killing jobs within the industry.

So really today, the repealing of this vote, Jake, is seen as a very big win for the coal industry.

As presented above and at CNN's web page, the video gives viewers the impression that the "regulations" (Marsh's word, also seen in the web page's verbiage) have been in force for some time ("Congress rolls back," also seen above), and that the subject matter only concerns reporting requirements. By implication, she led viewers to believe that it related to what existing mines must do, and that coal and other mining companies have been filing related reports with the government for some time.

None of this is true. What's really happening is that a single regulatory "final rule" known as the "Stream Protection Rule," which was issued by the Obama administration on December 19, i.e., during the Trump transition period, is being eliminated.

The rule, as summarized by the U.S. Interior Department's Office of Surface Mining Reclamation and Enforcement, appeared to place extraordinary discretionary power in bureaucrats' hands (italics are mine):

... The rule defines “material damage to the hydrologic balance outside the permit area” for the first time and clarifying that the statutory prohibition on the approval of proposed operations that would result in material damage to the hydrologic balance outside the permit area applies to both surface and underground mining operations. Under SMCRA, the regulatory authority may not approve a permit application unless the application demonstrates, and the regulatory authority finds, that the proposed operation would not result in material damage to the hydrologic balance outside the permit area.

The rule expands the baseline data requirements for permit applications for proposed coal mining operations to ensure that the permittee and the regulatory authority have a complete picture of premining conditions to which the impacts of mining can be compared.

So the Stream Protection Rule is about permits for new mines at least as much as it's about imposing onerous requirements on existing ones.

The excerpt, with its "regulatory authority has the final say" language, appears to give Interior the leeway to decide on its own what the largely theoretical "material damage" occurring "outside the permit area" might be for a new mine. Permit applications would take even longer, and their approval would be subject to more regulatory whim than they are already.

The bolded items in the second excerpted paragraph demonstrate that the "expanded" data requirements in the December rule are new. CNN's Marsh gave viewers the opposite impression.

Additionally, Marsh failed to mention that, because of its recency, the Stream Protection Rule came under the permitted jurisdiction of the Congressional Review Act (CRA).

Daren Bakst and James L. Gattuso at the Heritage Foundation explained the CRA in December:

Enacted over 20 years ago as part the “Contract with America” package of reforms, the Congressional Review Act (CRA) has sat largely unused in the congressional toolbox. This law sought to make it easier for Congress to repeal regulations, but only once has it been successfully used to do so. That is about to change.

... While Congress has always had the power to stop any regulation it disapproves of, the CRA provides a streamlined process for Congress to disapprove a final rule without threat of filibuster. Moreover, it bars agencies from re-imposing the same or similar rule afterward. Because of this, the CRA could in many cases provide a more effective way to address newly imposed final rules than even direct repeal of a final rule by federal agencies.

... The CRA process, which applies to both “major” and “non-major” rules begins with a notification to Congress from the agency of the adoption of a new regulation. This triggers a 60-day period in which Congress can introduce a “resolution of disapproval” of a rule. 

Importantly, this 60-day period is calculated in terms of “legislative” days, not actual calendar days. Thus, as calculated by the Congressional Research Service (CRS), this means that rules adopted as far back as June 3, 2016, are still within this review period.

Naturally, since Donald Trump's election victory, the press has portrayed Congress's potential and now-current employment of CRA to rein in examples of regulatory overreach like the Stream Protection Rule as "dusting off a little-used congressional tool" (Bloomberg News); an "obscure tactic" (Boston Globe); "an obscure oversight tool" (Associated Press); and "an obscure law" (New York Times).

These reports have not mentioned the fact that President Bill Clinton signed the Congressional Review Act into law in 1996. At the same time, they've been quite eager to tell readers that the single previous example of the CRA's use occurred in 2001 during the George W. Bush administration.

In genuine historical context, the revival of the CRA is best seen as the revival of a noble bipartisan effort to rein in the horribly expensive, job-killing and two-faced regulatory state. It's a pretty good bet that the establishment press won't ever see things that way.

Expensive and job-killing? Yes. Congressmen and senators representing areas where what's left of the coal industry is still present decried the rule as "one of the most onerous regulations that has come out of the Obama administration," and characterized it as driven by "one thing: (to) kill coal."

And "two-faced"? Yes. Given its bungled handling of the Animas River disaster, and the EPA's official refusal to pay claims arising from the spill mere days before Barack Obama left office, it's clear that the Obama administration was intent on imposing standards of conduct and mountains of paperwork on the private sector that it refused to apply to itself.

Cross-posted at