Ohio River Valley Environmental v. Kempthorne

• Decision Date: 12 December 2006
• Docket Number: No. 06-1122.,06-1122.
• Citation: 473 F.3d 94
• Parties: OHIO RIVER VALLEY ENVIRONMENTAL COALITION, INCORPORATED; Hominy Creek Preservation Association, Incorporated; Citizens Coal Council, Plaintiffs-Appellees, v. Dirk KEMPTHORNE, Secretary of the Interior, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 94

473 F.3d 94

OHIO RIVER VALLEY ENVIRONMENTAL COALITION, INCORPORATED; Hominy Creek Preservation Association, Incorporated; Citizens Coal Council, Plaintiffs-Appellees, v. Dirk KEMPTHORNE, Secretary of the Interior, Defendant-Appellant.

No. 06-1122.

United States Court of Appeals, Fourth Circuit.

Argued September 18, 2006.

Decided December 12, 2006.

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ARGUED: Allen M. Brabender, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellant. Walton Davis Morris, Jr., Charlottesville, Virginia, for Appellees. ON BRIEF: Steven C. Barcley, United States Department of the Interior, Office of the Solicitor, Pittsburgh, Pennsylvania; Sue Ellen Wooldridge, Assistant Attorney General, Kathryn E. Kovacs, Ruth Ann Storey, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellant. Charles M. Kincaid, Huntington, West Virginia, for Appellees.

Before WILLIAMS, Circuit Judge, HAMILTON, Senior Circuit Judge, and RICHARD L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Senior Judge HAMILTON and Judge VOORHEES joined.

OPINION

WILLIAMS, Circuit Judge.

The Secretary of the Interior¹ appeals the district court's grant of summary judgment in favor of Ohio River Valley Environmental Coalition, Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal Council (collectively "OVEC") in an action alleging that the Secretary's approval of amendments to West Virginia's regulatory program for surface coal mining violated the Administrative Procedure Act ("APA"), 5 U.S.C.A. § 500 et seq. (West 1996), and the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C.A. § 1201 et seq. (West 1986 & Supp.2006). Because the Secretary's decision to approve the amendments was arbitrary and capricious, we affirm.

I.

A.

West Virginia developed its state program for the control of surface coal mining pursuant to SMCRA, which regulates surface coal mining through a cooperative federalism approach. "Under this scheme, Congress established in SMCRA minimum national standards for regulating surface coal mining and encouraged the States, through an offer of exclusive regulatory jurisdiction, to enact their own laws incorporating these minimum standards, as well as any more stringent, but not inconsistent, standards that they might choose." Bragg v. West Virginia Coal Ass'n, 248 F.3d 275, 288 (4th Cir.2001); see 30 U.S.C.A. § 1202. To accept this offer, "a State must pass a law that provides for the minimum national standards established as requirements in SMCRA and must also demonstrate that it has the capability of enforcing its law." Id. (citing 30 U.S.C.A. § 1253(a)); see also 30 C.F.R. § 732.15 (2006). SMCRA charges the Secretary of the Interior, acting through the Office of Surface Mining Reclamation and Enforcement ("OSM"), with the task of reviewing and either approving or disapproving state regulatory programs for the control of surface coal mining. 30 U.S.C.A. § 1211(c)(1).

Once the Secretary approves a state program, the State has achieved "primacy" and has exclusive jurisdiction to regulate surface coal mining within its borders. The federal requirements "drop out" as operative provisions, although they "continu[e] to provide the `blueprint' against which to evaluate the State's program" and can be reengaged in a 30 U.S.C.A. § 1271 enforcement proceeding by the Secretary. Bragg, 248 F.3d at 289. Also, any proposed change to the laws or regulations that make up an approved State program must be submitted to the Secretary as a State program amendment, and the State lacks the authority to implement the change until the Secretary approves it. 30 C.F.R. § 732.17(g). The Secretary may not approve a State program amendment without first soliciting and publicly disclosing the views of the public and relevant federal agencies and obtaining written concurrence of the Administrator of the Environmental Protection Agency ("EPA") with respect to aspects of the amendment(s) related to air or water quality standards. 30 C.F.R § 732.17(h). Review of a State program amendment utilizes the same criteria applicable to the approval or disapproval of a State program in the first instance. 30 C.F.R. § 732.17(h)(10). Consequently, the Secretary must find the altered State program no less stringent than SMCRA and no less effective than the federal regulations in meeting SMCRA's requirements in order to approve it. 30 C.F.R. §§ 730.5, 732.15(a).

B.

In January 1981, West Virginia received primacy in the form of a conditional approval pending correction of a number of deficiencies in its program. Inadequacies remained until 1988, when the State initiated an emergency rulemaking session to forestall federal takeover of all or part of its program. The 1988 emergency rules added regulatory definitions of "cumulative impact"² and "cumulative impact area."³ (J.A. at 122-23.) The cumulative impact provision referenced circumstances in which material damage could occur, explaining that "[w]hen the magnitude of cumulative impact exceeds threshold limits or ranges as predetermined by the [West Virginia] Department [of Energy], they constitute material damage."⁴ (J.A. at 123.) The Secretary approved the amendments in a final rule which noted that "[a]lthough the Federal regulations do not specifically define cumulative impact, the Federal requirements at 30 C.F.R. §§ 780.21(g) and 784.14(f) contain provisions regarding the cumulative impact of mining on the hydrologic balance which form the basis for the State's definition." See West Virginia; Permanent Regulatory Program, 55 Fed.Reg. 21,304, 21,308 (May 23, 1990).

On May 2, 2001, West Virginia submitted a state program amendment to OSM that deleted the cumulative impact definition and added a provision defining material damage as "any long term or permanent change in the hydrologic balance caused by surface mining operation(s) which has a significant adverse impact on the capability of the affected water resource(s) to support existing conditions and uses." See 66 Fed.Reg. 28,682, 28,683 (May 24, 2001). The proposed material damage definition left "significant adverse impact" undefined and lacked any indication of how the regulatory authority proposed to measure such an impact or determine when it would occur.

OSM responded by filing a notice of the proposed rule and opportunity for public comment in the Federal Register on May 21, 2004. The agency received comments from interested parties and other federal agencies. The United States Fish and Wildlife Service ("USFWS") recommended that OSM deny the proposed changes. The agency's opposition to the deletion of the cumulative impact provision stemmed from its ongoing concern for the potential of cumulative impacts from individual mountaintop mining operations to impair the ecological functioning of entire watersheds and the resulting belief that the law should "address this very important issue more thoroughly rather than with less scrutiny." (J.A. at 162-63). It considered the material damage definition inadequate because it left the terms "long term" and "significant adverse impact" undefined and therefore open to individual interpretation and because it effectively eliminated the consideration of short-term impacts without regard for their magnitude. (J.A. at 162-63.) EPA also expressed concern and recommended that the cumulative impact definition not be deleted and the material damage definition be expanded to include "violation of water quality standards." (J.A. at 182.) Despite its concerns, EPA did grant its concurrence of the proposed amendment, with the understanding that its implementation must comply with the Clean Water Act (CWA) and its implementing regulations. OSM then requested additional clarification from West Virginia addressing the agencies' concerns, which the State provided. Upon receipt of the State's clarification letter, EPA reaffirmed its concurrence with the proposed amendment. The Secretary reopened the comment period to provide the public an opportunity to review and comment on the State's clarification. West Virginia Regulatory Program, 68 Fed.Reg. 44,910 (July 31, 2003). The Secretary issued a final rule on December 1, 2003, approving the amendments to West Virginia's program. West Virginia Regulatory Program, 68 Fed.Reg. 67,035, 67,043 (December 1, 2003) (to be codified at 30 C.F.R. pt. 948).

C.

OVEC filed a complaint challenging the final rule in the United States District Court for the Southern District of West Virginia on January 30, 2004. See 30 U.S.C.A. § 1276(a)(1) ("Any action of the Secretary to approve or disapprove a State program ... shall be subject to judicial review by the United States District Court for the District which includes the capital of the State whose program is at issue.") The complaint alleged that the Secretary's approval of the amendments violated the APA and SMCRA and sought declaratory and injunctive relief. On September 30, 2005, the district court granted summary judgment in favor of OVEC, vacating the Secretary's approval of the amendments and remanding the matter for further proceedings. OVEC next requested that the court amend the judgment because the Secretary had responded to the Order by sending the State a notice that treated the deletion of the cumulative impact definition as effective but in need of correction. On November 22, 2005, the district court issued an Amended Judgment Order directing the Secretary to instruct West Virginia that because the Secretary's approval had been vacated, the state had no authority to implement either amendment and therefore had to enforce the program as approved by OSM prior to the amendments. The Secretary timely appealed both Orders. We have jurisdiction to hear...