Permanent Surface Min. Regulation Litigation, In re, 80-1308
| Citation | 653 F.2d 514,209 U.S.App.D.C. 259 |
| Decision Date | 01 April 1981 |
| Docket Number | No. 80-1308,80-1308 |
| Parties | , 209 U.S.App.D.C. 259, 11 Envtl. L. Rep. 20,941 In re PERMANENT SURFACE MINING REGULATION LITIGATION. Appeal of PEABODY COAL COMPANY. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 79-1144).
Warner W. Gardner, Washington, D. C., with whom I. Michael Greenberger and James R. Bird, Washington, D. C., were on the brief, for appellant.
Michael A. McCord, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., Carl Strass, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee, Secretary of the Interior. Robert L. Klarquist, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellee.
L. Thomas Halloway, Richard Webb, Norman Dean, Terence L. Thatcher, Washington, D. C., were on the brief for appellee National Wildlife Federation. Jonathan Lash, Washington, D. C., was on the brief for appellee Natural Resources Defense Council.
Roger L. Chaffe, Asst. Atty. Gen., Com. of Va., Richmond, Va., was on the brief for amicus curiae urging reaffirmance.
Harvey M. Sheldon, Sp. Counsel, State of Ill., Chicago, Ill., was on the brief for amicus curiae urging reaffirmance.
Before McGOWAN, Chief Judge, and WRIGHT, TAMM, ROBINSON, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.
Opinion for the court filed by Circuit Judge MIKVA.
This case presents a narrow question concerning the relative authority of the Secretary of the Interior and the states in the administration of the Surface Mining Control and Reclamation Act of 1977 (Surface Mining Act, or Act), 30 U.S.C. §§ 1201-1328 (Supp. I 1977). The United States District Court for the District of Columbia held that the Act gives the Secretary rulemaking power to prescribe minimum information requirements for permit applications submitted to state regulatory agencies. We conclude that the Act does give the Secretary this authority, and accordingly affirm the judgment of the district court.
The Surface Mining Act embodies Congress' recognition that "the expansion of coal mining to meet the Nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public." Act § 101(d). 1 After an initial period of direct regulation by the Secretary, the Act contemplates a continuing partnership between the states and the federal government, with the Secretary providing oversight, advice, and back-up authority, and the states bearing the major responsibility for implementation of the Act. The crucial step in accomplishing this transition is a state's submission of its proposed regulatory program to the Secretary for his approval. The Secretary may only approve the state program if he finds it capable of carrying out the exacting provisions of the Act, and consistent with his own regulations. Act § 503(a).
Whether regulation is under federal authority or an approved state program, persons wishing to engage in surface mining must obtain a permit from the regulatory authority. Act § 506(a). Permits may not be granted unless the applicant successfully carries the burden of establishing full compliance with the applicable program, and the applicant must submit detailed information from which the regulatory authority and interested citizens may judge compliance. Act §§ 510(b), 507(b). Section 507(b) lists a large number of items which, "among other things," a permit application must contain.
The Secretary's regulations for the permanent regulatory program, issued in March 1979, include rules concerning the content of acceptable state program submissions. See 44 Fed.Reg. 14,902, 15,312 (1979) (codified at 30 C.F.R. pts. 700-890 (1979)). These regulations specify minimum information that a state must require in a permit application, information which extends beyond the explicit information requirements detailed in the Act itself. See 30 C.F.R. pts. 778-784 (1979).
Various interested persons filed actions in the United States District Court for the District of Columbia, challenging the permanent regulations. 2 Appellant attacked the Secretary's information requirements in sweeping terms, denying that the Secretary possessed any power to promulgate regulations on that subject. Appellant also criticized numerous individual regulations as, for various reasons, beyond the scope of the Secretary's authority. In February 1980 the district court reached a decision on some of the many issues presented in the cases consolidated before it. The court concluded that "the structure of the Act, the general grants of rulemaking authority, and section 501(b) support the Secretary's power" to issue regulations requiring the states to demand more information than the statute itself requires. In re Permanent Surface Mining Regulation Litigation, Civ.No. 79-1144, mem. op. at 31 (D.D.C. Feb. 26, 1980). The district court entered a final judgment in accordance with rule 54(b) of the Federal Rules of Civil Procedure on that portion of its decision dealing with the Secretary's rulemaking power so that Peabody Coal Company could appeal that determination without delay. On July 10, 1980, a panel of this court reversed the judgment of the district court. Upon the Secretary's petition, we granted rehearing en banc and vacated the panel decision.
An illustration or two will suffice to demonstrate the absolute character of appellant's claim. Section 522(e)(5) of the Act forbids new surface coal mining operations "within three hundred feet from any occupied dwelling, unless waived by the owner thereof." The explicit information requirements of the Act, however, do not mandate that a permit application include any information from which it can be ascertained whether such owners have consented to the proposed operations. The Secretary's regulations require the operator to submit evidence of such consent with the permit application. 30 C.F.R. § 778.16(c) (1979). Congress also directed the Secretary to promulgate "regulations directed toward the surface effects of underground coal mining operations," Act § 516(a), and to make such modifications in the requirements of the Act "as are necessary to accommodate the distinct difference between surface and underground coal mining," Act § 516(d). Understandably, the explicit information provisions of the Act do not anticipate all of the Secretary's modifications. See, e. g., 30 C.F.R. § 784.14(d) (1979). Yet appellant denies that the Secretary has the power to issue any regulations requiring permit applications to include information that may be necessary to ensure compliance with section 522(e)(5) or the Secretary's modifications under section 516, unless that information is already demanded explicitly by the Act. Appellant insists that only the states have the power to increase the information requirements of the Act.
Our inquiry is narrow. We are called upon to determine only whether the Secretary has rulemaking authority to require that permit applicants submit any items of information beyond those enumerated in the Act. 3 The partial summary judgment we review does not extend to the question whether the regulations actually promulgated by the Secretary are permissible exercises of that authority. Challenges to individual regulations are being separately adjudicated in the court below, with varying results. 4 Appellant insists both in briefs and in oral argument to this court that the Secretary has no power to prescribe information requirements for permit applications. 5
We have, therefore, no occasion to assess the Secretary's justifications for individual regulations. We neither approve nor disapprove any regulation, and our decision today in no way forecloses subsequent timely challenges to those regulations, either here or in the court below.
Congress chose a special kind of regulatory structure for the Surface Mining Act, in which the federal government shares administrative responsibility with the states. Rather than reposing all decisionmaking power with the Secretary of the Interior, Congress afforded the states an opportunity to propose regulatory programs of their own, conforming to the requirements of the Act and to regulations promulgated by the Secretary. 6 Under a state program, the state makes decisions applying the national requirements of the Act to the particular local conditions of the state. The Secretary is initially to decide whether the proposed state program is capable of carrying out the provisions of the Act, but is not directly involved in local decisionmaking after the program has been approved.
The essence of appellant's arguments against the Secretary's claimed rulemaking power is that it does violence to the special allocation of decisionmaking power effected by the statute's structure. Because the state has the "primary governmental responsibility" under an approved state program, Act § 101(f), appellant urges that the Secretary has no power to decide what information the state should have before it makes its decisions.
The Secretary responds that this argument exaggerates the independence of the state's role in administering an approved program and slights the Secretary's responsibilities in approving and overseeing such a program. Appellant, according to the Secretary, would place an unjustified limitation on his approval role by denying his right to ask the states to seek more information in...
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