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Hodel v. Virginia Surface Mining & Reclamation Ass'n

ELR Citation: 11 ELR 20569
Nos. Nos. 79-1538, -1596, 452 U.S. 264/16 ERC 1027/(U.S., 06/15/1981) Aff'd

The Supreme Court upholds the constitutionality of the Surface Mining Control and Reclamation Act (SMCRA) under the Commerce Clause and Fifth and Tenth Amendments. The Court first finds that Congress rationally determined that regulation of surface coal mining is necessary to protect interstate commerce from adverse environmental effects resulting from intrastate activities. Further, SMCRA's regulatory scheme is reasonably related to Congress' goals. Thus, SMCRA does not violate the Commerce Clause. Section 515 of the Act, regarding reclamation of steep slopes does not violate the Tenth Amendment since the Act regulates activities of private persons only, not the activities of states as states. The Tenth Amendment does not prohibit Congress from preempting state regulation of private activity which adversely affects interstate commerce. Finding the challenge to the steep slope, §515, and unsuitability, §522, provisions of the Act not ripe for judicial review, the Court rules that the Act does not, on its face, violate the takings provisions of the Fifth Amendment. The Court also rules that the immediate cessation order provision, §521, does not violate the Due Process Clause of the Fifth Amendment because it falls under the emergency situation exception to the rule that due process requires a hearing prior to deprivation of a property right. The Court also rejects the district court's reduction in the five-day statutory time allowed for the Secretary of the Interior to respond to requests for temporary relief where cessation orders have been issued. Finally, the Court rules that challenges to the Act's civil penalty provision, §518, are not ripe for judicial review since appellees have alleged no actual harm.

Justice Powell suggests that the steep slope provisions of the Act may constitute a taking in violation of the Fifth Amendment, but agrees that the Court is confined in this case to aholding that the Act is not facially unconstitutional. Justice Rehnquist also concurs in the judgment but is concerned that the Court may have incorrectly broadened the commerce power by not clearly requiring Congress to show that the activity substantially affects interstate commerce. Chief Justice Burger agrees with Justice Rehnquist's concern about the gradual expansion of the commerce power, but finds that in this case a substantial effect on interstate commerce has been demonstrated.

Counsel for Petitioner
Wade H. McCree Jr., Solicitor General
Department of Justice, Washington DC 20530
(202) 633-2201

Morgan E. Scott, Ass't U.S. Attorney
P.O. Box 1709, Roanoke VA 24008
(703) 982-6250

Andrew F. Walch
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4112

Counsel for Respondents
John L. Kilcullen
Kilcullen, Smith & Heenan
Suite 600N, 1800 M St. NW, Washington DC 20036
(202) 296-8700

Robert T. Winston
P.O. Box 408, Norton VA 24273
(703) 679-3110

Kenneth P. Ashbury, City Attorney
129 Main St., Wise VA 24293
(703) 328-5286

Counsel for Intervenor-Plaintiff Commonwealth of Virginia
Roger L. Chaffe, Ass't Attorney General
Supreme Court Bldg., Richmond VA 23219
(804) 786-2071