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In re In re Permanent Surface Mining Regulation Litig.

Citation: 11 ELR 20941
No. No. 80-1308, 653 F.2d 514/15 ERC 1802/(D.C. Cir., 04/01/1981) Rev'd en banc

Sitting en banc, the circuit court vacates a decision of its panel, 10 ELR 20526, and affirms a district court's ruling, 10 ELR 20208, that the Secretary of the Interior is authorized under the Surface Mining Control and Reclamation Act (SMCRA) to promulgate minimum information requirements for coal mine permit applications that exceed those set forth in the statute. The Secretary's regulations, which are more detailed than requiements specified in §§ 507 and 508 of the Act, describe the data that applicants must submit to state authorities administering SMCRA under programs approved by the Secretary. The court rejects the view that only state authorities can expand upon the statutory data requrements. Sectionns 201(c)(2) and 501(b) of the Act confer upon the Secretary authority to issue substantive rules to assure the effective implementation of the Act. Uniform information requirements applicable in all states help to avoid the undesirable relaxation of environmental standards that could result from industrial competition among the states. The court also holds that the information requrements in §§ 507 and 508 do not constitute such an exhaustive list that they preclude the Secretary from requiring the states to secure additional information needed to assure compliance with the Act. Four of the court's 11 judges dissent and would reverse the district court's finding and hold that the Secretary's issuance ofminimum permit information requirements exceeded his authority. Concluding that the Act itself defines the minumum requiements, they view the Secretary's authority as limited to assuring that the state programs effectuate those requirements.

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

Counsel for Appellee
Michael A. McCord; James W. Moorman, Ass't Attorney General; Carl Strass, Alfred T. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Norman L. Dean Jr.
National Wildlife Federation
1424 16th St. NW, Washington DC 20036
(202) 797-6845

Before: McGOWAN, Chief Judge, and WRIGHT, TAMM, ROBINSON, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.