Is Public Service Commission Lawsuit Really About Removing North Dakota’s Authority To Regulate Surface Mining?

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Written By:
Rob Port

May 31, 2012
4:10pm

A lawsuit filed by the (taxpayer funded) political activist at the Dakota Resource Council as well as the Sierra Club against North Dakota’s Public Service Commission has been viewed by most political observer as an attempt by leftist environmentalists to smear Republicans (particularly the two PSC member who are running for the US House) and hold up a coal project in the state.

But is there something more to the story? Now that the lawsuit has finally been filed, it also names President Obama’s Secretary of the Interior Ken Salazar accusing him of having “failed to ensure the enforcement of federal conflict of interest rules for mining regulators” according to the Fargo Forum.

The inclusion of Salazar is interesting because, as the Forum also reports, the lawsuit is asking the federal government to “withdraw approval of the North Dakota state surface mining program and institute direct federal enforcement.”

North Dakota is one of the few states in the nation which regulate surface coal mining on it own, under the oversight of the federal government. I have little doubt that the environmentalists would much rather decisions on North Dakota coal mining be made in Washington DC rather than Bismarck.

Last year the State of North Dakota fought a pitched battle with the EPA over regulating regional haze. The EPA wanted to take the authority to regulate North Dakota’s air away from North Dakota’s officials. State leaders pushed back and won that battle for now, but I wonder if this PSC lawsuit isn’t a way to do an end-run toward removing the state’s authority to regulate surface mining.

And there is some precedent for this sort of tactic. It’s called “sue and settle,” and what happens is this: Environmental activists sue the federal government demanding some change in regulatory policy. Normally such changes would require a lengthy administrative process, if not an act of Congress, but if an environmental group sues and the federal government settles the lawsuit they can implement the regulatory changes pointing to the court order from the settlement as justification.

I’ve written about it previously. It’s a tactic that uses, or abuses to put it more accurately, the court system to short circuit the legislative process.

The real target for the Dakota Resource Council and the Sierra Club might not be Public Service Commissioners Kevin Cramer, Brian Kalk and Kevin Cramer so much as North Dakota’s authority over surface mining in general.

Unless I’m missing something, it seems all that’s standing in the way of North Dakota losing its authority over surface mining is the Obama administration caving on this lawsuit.