CHAPTER 4 A REVIEW OF LITIGATION CONCERNING SMCRA

• Jurisdiction: United States

Western Land Use Regulation and Mined Land Reclamation
(Nov 1979)
CHAPTER 4
A REVIEW OF LITIGATION CONCERNING SMCRA
Charles F. Cook and Edward M. Green
American Mining Congress
Washington, D.C.

INTRODUCTION

The Surface Mining Control and Reclamation Act of 1977¹ , enacted on August 3, 1977, has generated a significant amount of judicial and administrative litigation in its relatively short life span.

Certainly one of the most controversial pieces of environmental legislation to be considered by the Congress in recent years, the Surface Mining Act has an exceptionally long legislative history, including two presidential vetoes in two different Congresses. The controversy swirling around the legislation for so lengthy a period of time may well be viewed as a factor contributing to the administrative and judicial litigation in which the industry currently finds itself embroiled.² Not only is the statutory language of many key provisions inartfully drafted, but also, in many crucial instances, the legislative history fails to decisively clarify the ambiguities of the statutory language.

Several other points are important to keep in mind in any analysis of litigation under the Surface Mining Act. First, section 501 of the Act³ mandates a two-tier regulatory scheme. By November 3, 1977, the Secretary of Interior was required to promulgate regulations covering an "interim regulatory procedure for surface coal mining and reclamation operations". These regulations were to establish "mining

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and reclamation performance standards" based on what the Congress deemed to be critical environmental protection provisions set forth in section 515 of the Act.⁴

By August 3, 1978 the Secretary was required to promulgate "a permanent regulatory procedure for surface coal mining and reclamation operations", including not only mining and reclamation performance standards, but also procedures and requirements for preparation, submission, and approval of state programs; and development and implementation of federal programs.⁵

In the case of both the interim regulations as well as the permanent regulations, the Secretary missed both statutory deadlines by a wide margin of error. The interim regulations were promulgated on December 13, 1977⁶ and the permanent program regulations were not promulgated until March 13, 1979. There were many reasons for these delays, not the least of which was the fact that the Surface Mining Act created an entire new federal agency, the Office of Surface Mining, Reclamation and Enforcement, within the Interior Department to develop the regulations and administer the programs established by the Act. In addition, the Congress failed to appropriate funds for the Office of Surface Mining (OSM) until well into 1978; President Carter failed to nominate a Director for the Office until two months after the statute was enacted; and the Senate failed to confirm OSM Director Walter Heine until December, 1977.

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OSM's tardiness in promulgating regulations is more than academic, since the statute also mandates compliance dates for the industry and the states.⁷

Second, in order for the coal industry to be in a posture to effectively respond to the mandated regulations, a Joint National Coal Association/American Mining Congress Committee on Surface Mining Regulations was established in July, 1977 so that the combined expertise of the industry could analyze and evaluate OSM's proposed regulations and make its views and recommendations known with an informed voice. Six subcommittees or working groups within the Joint Committee were formed to focus on specific aspects of the regulations, and membership on the Joint Committee, which has grown to over 200 individuals, represents every type of coal mining operation as well as every mining region in the nation.

From the date the Act was signed into law, the two key principles which have guided the industry are:

1) That a basic purpose of the Surface Mining Act is to "assure that the coal supply essential to the Nation's energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy";⁸ and

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2) Because of the diversity of terrain, climate, biologic, chemical and other physical conditions in mining areas, as well as the many variations in mining methods required to produce coal, and the greater efficiency of local control, that therefore the states are properly the focal point for the regulation of reclamation operations.

The industry has consistently urged the Interior Department to recognize that if these purposes are to be achieved, it is of paramount importance that the OSM regulations must be reasonable, flexible, and based on an understanding of what is physically, technologically, and economically possible. Furthermore, the Interior Department must recognize the ability of the states to develop programs to achieve both the environmental protection provisions of the Act and the Congressional goal of state assumption of primary jurisdiction over surface coal mining and reclamation operations.

Unfortunately, in all too many instances OSM's regulations, in the view of industry, fail to take these critical factors into account. Many of the new regulations are arbitrary, unnecessarily inflexible, and will ultimately result in dislocation of many operators, disruption of the nation's energy supply, and needlessly increased costs that will impose additional harships upon the electric utility consumer with no improvement in the reclamation of mined land.

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Third, the Surface Mining Act establishes special provisions for both administrative and judicial litigation. Undoubtedly, these special provisions have played a part in the number of cases which have arisen under the Act thus far, and this is particularly true in the context of judicial litigation. A related point to keep in mind here is that the special administrative and judicial review provisions of the Surface Mining Act have as their model similar provisions of the Federal Mine Safety and Health Act of 1977,⁹ as well as the Federal Water Pollution Control Act and the Clean Air Act.¹⁰

Lastly, to date the greater proportion of attention has been paid to litigation in the federal court system, and section one of this paper deals with those cases. Section two, however, deals with the administrative cases before the Interior Department's Office of Hearings and Appeals, and the importance of this forum cannot be overemphasized enough. While the volume of cases discussed in section two may seem tremendous, it is suggested that as implementation of the Act becomes more vigorous, the administrative case load can only become greater in volume and more significant in terms of the legal issues involved.

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REVIEW OF JUDICIAL CASES FILED UNDER THE SURFACE MINING ACT

Section 526 of the Surface Mining Act¹¹ provides in pertinent part as follows:

Any action by the Secretary promulgating national rules or regulations including standards pursuant to sections 501, 515, 516 and 523 shall be subject to judicial review in the United States District Court for the District of Columbia Circuit. Any other action constituting rulemaking by the Secretary shall be subject to judicial review only by the United States District Court for the District in which the surface coal mining operation is located. Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious or otherwise inconsistent with law. A petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within 60 days from the date of such action, or after such date if the petition is based solely on grounds arising after the 60th day. Any such petition may be made by any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary.

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The court shall hear such petition or complaint solely on the record made before the Secretary. ...(And) the findings of the Secretary if supported by substantial evidence on the record considered as a whole, shall be conclusive.

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This special procedure for judicial review of rulemaking by the Secretary of the Interior under the Surface Mining Act sets forth four important criteria:

1) A rulemaking which constitutes national rules or regulations (such as the interim and permanent program regulations) is subject to review in the United States District Court for the District of Columbia.

2) Any rulemaking which is not in the category of national rules or regulations is subject to judicial review only in the United States District Court for the District in which the surface coal mining operation is located.

3) In the cases of both 1) and 2) above, the action must be filed within 60 days from the date of promulgation of the regulations unless the cause of action is based solely on grounds arising after the 60th day. In addition it would appear that in order to have standing a plaintiff must a) have participated in the administrative proceedings related to the rulemaking and b) must be aggrieved by the Secretary's action.

4) The standard of review by which Secretarial action is to be judged is the standard of whether the

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action is arbitrary, capricious, or otherwise inconsistent with law. The regulatory record will be the basis for the court's review and the substantial evidence test will be in effect.

INDUSTRY LAWSUIT ON INTERIM REGULATIONS

Late in January 1977, approximately 20 lawsuits were filed in the Federal District Court for the District of Columbia challenging the validity of the interim regulations.¹² The American Mining Congress and the National Coal Association, on behalf of their members...