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In re In re Surface Mining Regulation Litig.

Citation: 10 ELR 20465
No. Nos. 78-2190 et al., 627 F.2d 1346/14 ERC 1421/(D.C. Cir., 05/02/1980) Aff'd in part, rev'd in part

Affirming in part and reversing in part the lower court, the D.C. Circuit Court of Appeals rules on challenges to the Department of the Interior's Interior's regulatory program under the Surface Mining Control and Reclamation Act. Following publication of the final interim regulations in December 1977, a number of challenges were filed in the federal district court which consolidated them and, in two decisions, rejected them. On appeal by coal mining companies and trade association, the court rejects the allegations that the regulations suffer from three general defects that constitute grounds for invalidating the entire program. The court affirms the lower court's decision that the basis and purpose statement for the interim regulations adequately complies with the requirements of the Administrative Procedure Act. Second, the court of appeals agrees with the district court that a general variance procedure was not required under the Act.Third, the lower court correctly concluded that formal economic and inflationary impact analyses were not required. The court of appeals next turns to five challenges to specific provisions of the regulations. The court reverses the district court's endorsement of two regulations limiting blasting, finding that they conflict with an explicit provision in the Act and are not supported in the administrative record, respectively. In addition, the court reverses the lower court's acceptance of the regulations' grandfather exemption for surface mining on prime farmlands. Relying on the legislative history, the court invalidates this regulation as unduly narrowing privileges established by the Act. On the fourth specific challenge, however, the court upholds the enforcement provisions regarding surface mining on Indian lands on the ground that they are consistent with the congressional intent that operations on Indian lands be in full compliance with the performance standards of the interim program. Finally, the court remands to the lower court the issues relating to the interim effluent regulations. Agreeing with the lower court's conclusion that these regulations cannot stand to the extent that they modify provisions of the Federal Water Pollution Control Act, the appeals court nonetheless disagrees that these regulations are justified because they fill a "regulatory gap" in Environmental Protection Agency (EPA) regulations. On remand, the lower court is to decide whether specific exemption and variance provisions are applied by EPA to coal mines and must therefore be incorporated into the interim surface mining regulations.

Counsel for Appellants
Robert N. Sayler, Theodore Voorhees Jr., Robert J. Gage, Peter J. Nickles
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Warner W. Gardner, I. Michael Greenberger
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Thomas G. Johnson
Shell Oil Co.
1 Shell Oil Plaza, P.O. Box 2643, Houston TX 77001
(713) 241-6161

John A. MacLeod, Richard McMillan Jr.
Crowell & Moring
1100 Connecticut Ave. NW, Washington DC 20036
(202) 452-5823

Counsel for Appellees
Michael A. McCord; James W. Moorman, Ass't Attorney General; Sanford Sagalkin, Deputy Ass't Attorney General; Lois J. Schiffer, Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

L. Thomas Galloway
Center for Law and Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

Jonathan Lash
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Terrence L. Thatcher
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Before McGOWAN, TAMM and ROBB, Circuit Judges.