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France announces voluntary adoption of a new law amending the Mining Code to meet Paris Agreement commitments.

By Paul Davies and Michael Green*

Background

After lengthy legislative debates, the amended Mining Code (MC) now provides that, as a matter of principle, the research and exploitation of coal, and of all liquid or gaseous hydrocarbons, shall be gradually phased out and then banned (Art. L.111-6§1). If liquid or gaseous hydrocarbons are “related” to deposits of substances not affected by the ban, then the title holder cannot exploit these either and must leave them untouched (Art. L.111-6§2). One exception to the ban is “mine gases” (i.e., gases located in formerly exploited coal seams for which recovery requires only necessary intervention to maintain mining cavities under low pressure for suctioning such gases) (Art. L.111-5).

To assist with the phase out and ban, the government has introduced measures to help title holders transition to an alternative use. As such, four years prior to the expiration of their permits, affected title holders may also apply to convert their permits to allow the exploitation of other substances or other uses of the sub-soil. In order to qualify for permit conversion, title holders must demonstrate both that: (i) the new substance or new use is “related” to the hydrocarbons present in the deposit; and (ii) the pursuit of the exploitation of such deposit is necessary to secure its profitability (Art. L.111-7).

By Paul Singarella, Claudia O’Brien, Marc Campopiano Daniel Brunton, Joshua Bledsoe, Lucas Quass, John Heintz, Joshua Marnitz and John Morris

On July 27, 2015, the US Department of the Interior, through its Office of Surface Mining Reclamation and Enforcement (OSMRE), proposed to revise regulations adopted under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) that govern surface coal mining and reclamation operations near surface streams (the Proposed Rule). According to the OSMRE, “[t]he primary purpose of this proposed rule is to reinforce the need to minimize the adverse impacts of surface coal mining operations on surface water, groundwater, fish, wildlife, and related environmental values, with particular emphasis on protecting or restoring streams and aquatic ecosystems.” OSMRE asserts widespread impacts including loss of headwater streams, long-term degradation of surface water quality downstream from mines, displacement of native species, compaction of postmining soils and watershed hydrology impacts. SMCRA requires OSMRE regulations to respect coal’s important place in the country’s energy portfolio. Whether this draft rule strikes a reasonable balance under SMCRA will be the subject of intense debate as this rulemaking proceeds.

The Proposed Rule would significantly alter OSMRE’s decades-old “Stream Buffer Zone” regulations, which nominally require a 100-foot buffer for mining operations along streams,[1] and would expand regulatory oversight in the coal industry. Along with the Proposed Rule, OSMRE has published a draft Environmental Impact Statement (EIS) and a Regulatory Impact Analysis (RIA).