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Rep. Louie Gohmert (R-Texas) says the Interior Department may be breaking the law as it develops the forthcoming stream protection rule.

He was referring to the Office of Surface Mining, Reclamation and Enforcement's decision not to share new documents on the regulation with cooperating states.

Mining companies, states and pro-coal lawmakers, many of them skeptical of the proposal, see OSMRE's actions as another misstep in the rulemaking and a potential legal flaw.

Gohmert, chairman of the House Natural Resources Subcommittee on Oversight and Investigations, said at a hearing yesterday that he was concerned about "what appears to be another harmful federal regulation made yet by another federal agency that's not following the law." He accused OSMRE of running "roughshod over the very states they were supposed to be working with."

OSMRE gave cooperating states parts of the rule's draft environmental impact statement early during the Obama administration. Now they want new documents to make sure the agency took their opinions into account.

The agency may be hesitant to share new information following a 2011 leak, which led to reports that the rule would cost thousands of jobs. Increased congressional scrutiny followed.

Still, states say the National Environmental Policy Act rules and White House Council on Environmental Quality guidance require OSMRE to share more information. So far, the agency has verbally updated states.

Randall Johnson, director of the Alabama Surface Mining Commission, said he wasn't necessarily attacking the forthcoming rule. "All we're attacking is the process," he said.

Gregory Baker, reclamation program manager for the Virginia Department of Mines, Minerals and Energy, said OSMRE has yet to justify the stream protection rule.

Several states have decided to officially withdraw as cooperating agencies, including Alabama, New Mexico, Utah, Texas and West Virginia, which voiced its decision at the hearing.

"That decision was communicated by letter to the director of OSM yesterday," said Russell Hunter, counsel for West Virginia's Mining and Reclamation Division. "We thought that we could have a more effective input by assuming another role in the process."

Gohmert, who complained about OSMRE not turning over all the documents requested, told state witnesses, "Sorry for the lack of input the states have had."

'More open process'

Michigan Rep. Debbie Dingell, the subpanel's top Democrat, asked the states whether the George W. Bush administration included them as cooperators when developing a previous rule.

When none of the witnesses raised their hands, she asked, "So you didn't do it back then, either?"

"I just wanted to get that point on record," she said, and added that the Obama administration had a "more open process."

But then, when Rep. Alex Mooney (R-W.Va.), who has legislation meant to block the rule, asked whether the lack of OSMRE cooperation was "unprecedented," Hunter responded, "That's correct."

Asked how it has been to work with OSMRE under the Obama administration, Johnson said, "I would say that our experience with OSM over the last six years, seven years, has not been very rewarding."

Democrats and environmental advocates counter that OSMRE is simply enforcing the law while states are falling down on the job. Dingell asked Hunter whether his agency faces "capture" by the companies it oversees and whether it has the tools to police coal mining.

Hunter responded, "I believe the West Virginia DEP has in place an effective regulatory program."

Dingell then pointed to a company that has had 20 environmental violations and three work cessation orders and wondered whether industry "regards these violations as the cost of doing business?"

Hunter said, "I don't have an opinion of that."

Dingell then pointed out that Natural Resources Committee Republicans have been investigating the stream protection rule for four years, issued two subpoenas and collected more than 13,000 documents. The proposed rule is under review by the White House Office of Management and Budget.