Western Coal Fields Declared Unsuitable for Mining Amidst Legal Challenges to § 522 of Surface Mining Act

With visions of polluted streams and mutilated mountain sides in Appalachia,¹ Congress enacted the Surface Mining Control and Reclamation Act of 1977 (SMCRA),² to impose uniform federal reclamation standards on surface coal mining operations. The standards are to be enforced primarily by the states with backup authority by the Department of the Interior. In addition, the Act provides numerous and unique opportunities for public participation in the regulatory process.

Though the implementation of the Act was turbulent at the outset, federal and state management agencies seem generally to have become accustomed to the Act's requirements and to have achieved a working relationship with each other.³ On the other hand, a number of aspects of the statute have yet to be implemented fully or are subject to serious questions as to their constitutionality. Both of these characteristics apply to § 522,⁴ which permits federal and state authorities to designate lands as unsuitable for surface coal mining if reclamation is not feasible, if mining operations are incompatible with existing land use plans, or if surface mining would degrade valuable natural areas, and it allows citizen petitions to designate unsuitable lands. Recent developments on the administrative and judicial levels demonstrate how the unsuitability designation process operates, as well as the nature of the legal issues surrounding § 522.

In the first test of the unsuitability provisions of § 522, then-Secretary of the Interior Andrus declared portions of the Alton coal field in southern Utah unsuitable for surface coal mining because of aderse affects on the striking visual resources of the adjacent Bryce Canyon [11 ELR 10049] National Park.⁵ However, the status of this action remains in doubt as the companies holding coal leases in the area have appealed the decision in federal district court.⁶ In addition, and of more importance in the long term, § 522 has been beseiged by constitutional challenges.⁷ The Supreme Court recently heard arguments in two of the cases, Indiana v. Andrus⁸ and Virginia Surface Mining and Reclamation Association v. Andrus⁹, in which lower courts held that portions of the Act, including § 522, violate the Commerce Clause and the Fifth and Tenth Amendments of the United States Constitution.¹⁰

Unsuitability Designations,§ 522

Under the SMCRA, the Secretary of the Interior, acting through the Office of Surface Mining and Reclamation (OSM), is required to establish national environmental performance standards which include provisions for the restoration of mined land to its prior condition, restoration of land to its approximate original contour, segregation and stabilization of topsoil, minimization of disturbances to the hydrologic balance and water quality, and revegetation of mined areas.¹¹ In addition, the Act allows for public participation in almost every phase of the regulatory process.¹²

Title V of the Act sets forth the authority to regulate surface mining, the environmental performance standards, and procedural and enforcement mechanisms. While the thrust of Title V is reclamation of mined areas, it also provides procedures to prohibit mining through designation of environmentally fragile coal-bearing lands as unsuitable for surface coal mining.

Section 522 provides for three types of unsuitability designations: statutory or per se designation, designation after federal review, and designation by petition. Congress determined that certain lands are per se unsuitable for surface coal mining operations and thus in § 522(e) it prohibited surface coal mining within national parks, other federally protected lands,¹³ and within specified distances of public roads, dwellings, public buildings, parks, and cemeteries.¹⁴ Congress also prohibited mining operations which would adversely affect any public park or place listed in the National Register of Historic Sites.¹⁵ These designations are subject to a grandfather clause which protects "valid existing rights" and mining operations existing on August 3, 1977, the date of enactment.¹⁶ "Valid existing rights" are established by documentary proof and necessary permits.¹⁷

Designations in addition to those mandated by § 522(e) may be made by the Secretary of the Interior, who must conduct a review of federal lands to determine whether there are areas which are unsuitable for surface coal mining operations. Any lands found unsuitable must be withdrawn from mineral leasing and mineral entry.¹⁸ Although the Act does not specify whether the states must conduct a similar review, they are expressly required, as a condition of receiving enforcement primacy, to establish a planning process for determining which areas within the state are unsuitable for surface coal mining.¹⁹

A third type of unsuitability designation may also be made by the state and federal regulatory authorities pursuant to § 522(c), which allows "any person having an interest which is or may be adversely affected" to petition the regulatory authority to designate certain lands as unsuitable for all or certain types of surface coal mining.²⁰ Such a designation is mandatory if the regulatory authority determines that reclamation pursuant to the requirements of the Act will not be "technologically and economically feasible."²¹ Furthermore, the regulatory authorities have discretionary power to designate areas as unsuitable if the mining operations will:

(A) be incompatible with existing State or local land use plans or programs; or

(B) affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific, and esthetic values and natural systems; or

[11 ELR 10050]

(C) affect renewable resource lands in which such operations could result in a substantial loss or reduction of long-range productivity of water supply or of food or fiber products, and such lands to include aquifers and aquifer recharge areas; or

(D) affect natural hazard lands in which such operations could substantially endanger life and property, such lands to include areas subject to frequent flooding and areas of unstable geology.²²

As with the per se designations, designations by petitition are subject to a grandfather clause. Surface coal mining operations being conducted on the date of enactment, under a permit issued under the Act, or where "substantial legal and financial commitments" were in existence prior to January 4, 1977, are protected from unsuitability designations by petition.²³

Bryce Canyon Unsuitability Petition

Bryce Canyon National Park, in southern Utah, receives more than 620,000 annual visitors. It is famous for its spectacular scenic vistas, dramatically sculpted and richly hued Pink Cliffs, unique geologic sandstone formations known as "hoodoos," and remarkable visual clarity and low noise levels. The Alton coal field, located within three miles of Yovimpa Point, one of the Park's most dramatic panoramic overlooks, was expected to become the fuel source for the Allen-Warner Valley (AWV) Energy System proposed to be built in Utah and Nevada. The proposed project consists of the Alton strip mine and two coal-fired generating plants, a 500-megawatt plant in Warner Valley, Utah, 17 miles south and upwind of Zion National Park, and the 2000-megawatt Harry Allen Plant in Dry Lake, Nevada, near Las Vegas and the Desert National Wildlife Refuge. The Alton coal field was expected to produce approximately 10.5 million tons of coal per year delivered through two slurry pipelines to the plants. More than 85 percent of the energy produced was scheduled to be used in southern California and the remainder in Utah and Nevada.²⁴

Fears that the strip mine, which would be one of the largest in the world, would have devastating impacts on Bryce Canyon's extraordinary environmental qualities prompted a group of local residents and several environmental groups to file the first petition under § 522(c) of the SMCRA urging the Department of the Interior to designate the area as unsuitable for surface coal mining.²⁵ The petitioners asked that federal lands in a 325,200-acre area in the region be excluded from surface coal mining because it would be inconsistent with the standards under § 522(a).²⁶ They argued that for certain areas, reclamation in accordance with the provisions of the Act would not be "technologically and economically feasible." Furthermore, mining operations would allegedly destroy wildlife habitat, water quality, aesthetic and recreational values, and could result in significant damage to "important historic, cultural, scientific and esthetic values and natural systems" of fragile lands in violation of § 522(a)(3)(B),²⁷ and in a "substantial loss or reduction of long-range productivity of water supply or of food or fiber products" in violation of § 522(a)(3)(C).²⁸ Finally, and perhaps of greatest significance for the environmental stability of the Bryce Canyon area, they argued that under § 522(d)²⁹ and the National Environmental Policy Act,³⁰ OSM must consider alternative energy sources which could yield more energy than the AWV System over the same period of time.

In the first ruling ever made under § 522(c), Secretary Andrus declared that of 26,693 acres under federal coal lease in the petition area, 9,049 acres, where the surface impacts would be visible from Bryce Canyon National Park, were unsuitable for surface coal mining operations and underground mining.³¹ After an exhaustive review of the administrative record and the petitioners' arguments, the Secretary found that studies conducted by the Bureau of Land Management (BLM) and OSM³² did not support the petitioners' charges that land at the Alton coal field could not be reclaimed, that blasting from operations would damage geologic formations, that wildlife would be threatened, or that mining would cause irreparable harm to water supplies or air quality.³³ However, the studies did provide clear evidence that mining operations would seriously reduce visibility, that operations visible from the Park would intrude on the Park's scenic vistas, and that blasting would significantly damage the exceptional sound qualities of the Park.

The Secretary further concluded that although the issue of alternative energy sources was appropriately considered in the environmental impact statement for the AWV System, the existence of possible alternative does not constitute a basis for designating lands unsuitable for [11 ELR 10051] mining under § 522(a). Significantly, the Secretary ordered that future federal actions, such as decisions on mineral lease applications or rights-of-way through non-designated lands near the Park must be consistent with his decision in order to protect the values for which the Park was established.³⁴

Underlying Andrus' conclusion that mining in the designated areas would cause significant cumulative impacts on Bryce Canyon National Park³⁵ was his statement of reasons issued after the written decision.³⁶ Andrus based his decision to designate only 9,049 acres of the 203,900 acres of federal land in the petition area primarily on § 522(a)(3)(B), which permits discretionary designations if mining operations will "affect fragile or historic lands."³⁷ He relied heavily on the purposes for which the Park was established,³⁸ in addition to the Clean Air Act,³⁹ which grants the Secretary responsibility for protecting air quality-related values of Class I areas. The Secretary concluded that the Park's charter and subsequent legislation require preservation of its scenic, visibility, and air quality resources. Thus, he prohibited mining only in areas that would affect those values. However, the statement of reasons is noteworthy for its careful and thorough review of all the petitioners' arguments. In addition, it revealed the elaborate procedures followed during the unsuitability designation process, including the preparation of a combined petition evaluation and environmental impact statement document (PED), studies conducted by the government, the petitioners, and the intervenors,⁴⁰ public hearings held in the petition area, and written comments on the PED.

Constitutional Challenges to § 522

Since the enactment of the SMCRA in 1977, the strip mine industry has orchestrated a relentless attack on the Act and its implementing regulations at the administrative, judicial, and legislative levels,⁴¹ The legal challenges have been directed particularly to the constitutionality of Title V, including the provisions for unsuitability designation under § 522. This litigation has resulted in a wide split among the courts. Constitutional challenges alleging violations of the Commerce Clause,⁴² the Fifth⁴³ and Tenth⁴⁴ Amendments, as well as denials of substantive and procedural due process and equal protection, were upheld in district courts in Virginia⁴⁵ and Indiana⁴⁶ but rejected in Iowa.⁴⁷ The federal district court for the District of Columbia remanded a number of the regulations to OSM on the grounds that they were inconsistent with the Act, but found it unnecessary to delve into constitutional matters.⁴⁸ A challenge to the constitutionality of § 522(e), relating to per se unsuitability designations was rejected in an Ohio federal district court,⁴⁹ while a number of the Bureau of Land Management's (BLM's) regulations implementing § 522(d) were remanded in a recent decision by the District of Columbia federal district court.⁵⁰

In each of three cases, Virginia Surface Mining & Reclamation Association v. Andrus,⁵¹ Indiana v. Andrus,⁵² and Star Coal Co. v. Andrus,⁵³ plaintiffs sought a declaratory judgment that portions of SMCRA are unconstitutional as well as a permanent injunction preventing their enforcement by the Secretary of the Interior. Plaintiffs [11 ELR 10052] primarily attacked portions of Title V regarding mining on prime farmlands, restoration to approximately original contour, topsoiling requirements, designations of areas unsuitable for surface mining, and post-mining land uses. The courts in both Virginia and Indiana found many of these provisions unconstitutional and enjoined their enforcement.

The Commerce Clause arguments were rejected in both Virginia and Star Coal. The courts found that the legislative history supports Congress' finding that surface mining affects interstate commerce.⁵⁴ However, the court in Indiana disagreed, finding that the unsuitability provision and others⁵⁵ are not directed at the alleviation of water or air pollution and thus not reasonably adapted to removing substantial and adverse effects on interstate commerce. Legislating these conditions was deemed outside the enumerated powers of Congress and therefore unconstitutional.

Relying on National League of Cities v. Usery,⁵⁶ the courts in Virginia and Indiana found that several provisions of Title V are in fact land use control and planning requirements, thus interfering with the sovereignty of the states contrary to the Tenth Amendment. The two courts pinpointed § 522 in particular as directed solely at land use planning and control and mandating changes in county and state authority to regulate its land. The court in Star Coal, however, specifically rejected the other decisions. It found that the SMCRA regulates private parties rather than the states themselves and thus does not interfere with integral government functions or attributes of state sovereignty.

Finally, the courts in both Virginia and Indiana found that § 522(a), (c), (d), (e)(4) and (e)(5) effect a taking of property without just compensation in violation of the Fifth Amendment. The plaintiffs in Virginia primarily attacked the requirement that steep slopes be restored to their approximate original contour⁵⁷ but also argued against § 522(e).⁵⁸ After an extensive review of takings law, the Virginia court held both unconstitutional. The court concluded that because § 522 provides a procedure to prevent the removal of coal, it destroys mineral interests and results in a "total loss of profit opportunity;"⁵⁹ thus it was an unconstitutional taking.

Promulgation of the Department of the Interior's final regulations implementing SMCRA's permanent regulatory program promptly elicited a number of court challenges. Coal mine operators, environmental groups, and coal producing states filed a total of nine lawsuits raising more than 100 challenges to the regulations. The cases were consolidated in the District of Columbia federal district court, which upheld the Secretary's authority to issue permanent regulations but remanded a number of providions as arbitrary and capricious misapplications of the statute.⁶⁰ The court rejected most of plaintiffs' challenges to the regulations implementing § 522 but refused on ripeness grounds to rule on the constitutionality of the Secretary's implementation of the "valid existing rights" exception to the per se unsuitability rule of § 522.

The court also rejected procedural due process challenges to § 522(a) and (c). The regulations provide that the public hearing held in connection with unsuitability petitions "shall be legislative and fact finding in nature without cross-examination of witnesses."⁶¹ The court ruled that an adjudicatory hearing is not required because Congress had not indicated that the hearing be held in accordance with the Administrative Procedure Act.⁶² Furthermore, it observed, a legislative hearing is more appropriate for a suitability decision because it involves the resolution of conflicting policies involving a variety of subjective values.

Other challenges to § 522 of SMCRA include Holmes Limestone Co. v. Andrus,⁶³ in which an Ohio district court found that § 522(e)(5), which prohibits mining within 100 feet of a cemetery, does not constitute a taking of plaintiff's property in violation of the Fifth Amendment. The Act, it ruled, merely regulates certain specific land uses and allows regulated properties to be used for other purposes.

Conclusion

The two California utilities which expected to use more than 85 percent of the energy from the Allen-Warner Valley Energy System recently decided to withdraw their applications for construction of the project, citing their shift in emphasis to alternative energy sources. The Alton coal field leaseholders, however, have challenged the decision on the unsuitability petition. Although it appears to have been a fair application of the important and novel provision of § 522(c) and criteria set out in § 522(a), a more authoritative ruling now appears to be forthcoming. The appeal by the Alton leaseholders, unlike the other cases challenging a multitude of the statutory and regulatory provisions, presents the first direct challenge to the designation process without raising an array of difficult and diverting legal questions.

The entire body of strip mining law may be recontoured dramatically when the Supreme Court releases its opinion in the Virginia and Indiana cases.⁶⁴ However, while the validity of § 522 is at issue, it seems less bitterly disputed than several other provisions and might not elicit from the Court a full treatment of its constitutionality. [11 ELR 10053] Yet even if the Court declines to rule on § 522, a finding that other portions of SMCRA are unconstitutional could have a substantial bearing on the application of § 522.⁶⁵ For these reasons, virtually every aspect of the Act as well as the federal and state regulatory programs will remain in an unofficial legal limbo until the Court speaks on the matter later this spring.

1. See H.R. REP. NO. 218, 95th Cong., 1st Sess. 58 reprinted in [1977] U.S. CODE CONG. & AD. NEWS 596.

2. 30 U.S.C. §§ 1201-1328, ELR STAT. & REG. 42401. See generally, Comment, The Strip Mining Law: Conflicting Goals Underlie Balanced Regulatory Requirements, 7 ELR 10160 (1977).

3. As of March 3, 1981, of 24 coal mining states, 3 state programs had been fully approved, 18 had been partially or conditionally approved, and 3 had been disapproved.

4. 30 U.S.C. § 1272, ELR STAT. & REG. 42422.

5. Petition to Designate Certain Federal Lands in Southern Utah Unsuitable for Surface Coal Mining Operations, No. 79-5-001, 11 ELR 30001 (Dep't of the Interior, Dec. 6, 1980). The text of the statement of reasons that was issued to support the Secretary's decision is available from ELR (54 pp. $7.25, ELR Order No. A-1015).

6. Utah International, Inc. v. Watt, No. C-81-0090 (D. Utah, Complaint filed Feb. 13, 1981).

7. See generally, Comment, The 1977 Surface Mining Act Revisited: National Regulatory Program Surmounts Judicial and Legislative Challenges, 9 ELR 10199 (1979).

8. __ F. Supp. __, 10 ELR 20613 (S.D. Ind. June 10, 1980), cert. granted, No 80-231, 49 U.S.L.W. 3245 (Oct. 6, 1980).

9. 483 F. Supp. 425, 10 ELR 20128 (W.D. Va. Jan. 3 & 21, 1980), cert. granted, Nos. 79-1538, -1596, 49 U.S.L.W. 3245 (Oct. 6, 1980).

10. Although the Virginia and Indiana courts found portions of the SMCRA to be unconstitutional, the Supreme Court stayed the decisions pending disposition of the appeals to the Court. Andrus v. Virginia Surface Mining and Reclamation Association, 48 U.S.L.W. 3601, 10 ELR 10050 (Mar. 17, 1980), and Andrus v. Indiana, 10 ELR 10143 (July 2, 1980).

11. 30 U.S.C. § 1251, ELR STAT. & REG. 42410.

12. In addition to unsuitability designations by petition, provision is made for public participation in the permit process, the inspection process, and through citizen suits. 30 U.S.C. §§ 1256, 1257, 1263, 1267, 1271, and 1272, ELR STAT. & REG. 42411-22. See also The National Coal Issue, a Symposium on the Surface Mining Control and Reclamation Act, 81 W. VA. L. REV. 553 (1979); Barrett, Citizen Participation in the Regulation of Surface Mining, 81 W. VA. L. REV. 675 (1979).

13. 30 U.S.C. § 1272(e)(1) & (2), ELR STAT. & REG. 42423. These lands include national wildlife refuges, trails, wild and scenic rivers, and national forests except where mining operations would not significantly effect recreational, timber, or economic values. Id.

14. 30 U.S.C. §§ 1272(e)(4) & (5), ELR STAT. & REG. 42423.

15. 30 U.S.C. § 1272(e)(3), ELR STAT. & REG. 42423.

16. 30 U.S.C. § 1272(e), ELR STAT. & REG. 42423.

17. The regulations require that a legally binding conveyance, lease, deed, contract, or other document, which authorizes the applicant to produce coal, be in existence on August 3, 1977. In addition, the applicant must have all necessary state and federal permits as of August 3, 1977 or be able to "demonstrate to the regulatory authority that the coal is both needed for and immediately adjacent to an ongoing surface coal mining operation for which all mine plan approvals and permits were obtained prior to August3, 1977." 30 C.F.R. § 761.5(a)(2)(i) & (ii).

18. 30 U.S.C. § 1272(b), ELR STAT. & REG. 42423.

19. 30 U.S.C. § 1272(a)(1), ELR STAT. & REG. 42422.

20. 30 U.S.C. § 1272(c), ELR STAT. & REG. 42423.

21. 30 U.S.C. § 1272(a)(2), ELR STAT. & REG. 42422.

22. 30 U.S.C. § 1272(a)(3), ELR STAT. & REG. 42422.

23. 30 U.S.C. § 1272(a)(6), ELR STAT. & REG. 42423.

24. See generally, Los Angeles Times, Dec. 31, 1979, Pg. 1, at 3; Not Man Apart, Feb. 1980, at 12.

25. In the Matter of Designating Certain Federal Lands in Kane and Garfield Counties, Utah, Abutting Bryce Canyon National Park and Dixie National Forest as Unsuitable for Surface Coal Mining Operations (Dep't of the Interior, filed Nov. 28, 1979) [hereinafter cited as Petition]. A copy of this petition is available from ELR (24 pp. $3.00, ELR Order No. 743-A).

26. 30 U.S.C. § 1272(a), ELR STAT. & REG. 42422. However, only 203,900 acres of the land included in the petition area are federally owned and thus subject to § 522.

27. 30 U.S.C. § 1272(a)(3)(B), ELR STAT. & REG. 42422. The term "fragile lands" is defined in OSM's regulations, 30 C.F.R. § 762.5.

28. 30 U.S.C. § 1272(a)(3)(C), ELR STAT. & REG. 42422.

30. 30 U.S.C. § 1272(d), ELR STAT. & REG. 42423.

30. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

31. Secretary Andrus noted initially that, except for any "valid existing rights," surface coal mining operations are already prohibited in Bryce Canyon National Park, the town of Alton, and the Alton Cemetary, pursuant to 30 U.S.C. § 1272(e)(1), (3) & (5), ELR STAT. & REG. 42423.

32. The BLM and the OSM prepared a single document, entitled Southern Utah Petition Evaluation Document, meeting the environmental impact assessment requirements of both § 522(d) of SMCRA and the National Environmental Policy Act.

33. The petitioners alleged that mining would destroy local aquifers that provide water for agriculture, livestock, and wildlife and that the use of water to transport coal through the slurry pipelines would seriously deplete the local water supply. In addition, the Park is a Class I attainment area under the Prevention of Significant Deterioration (PSD) increment system of the Clean Air Act. Mining, they alleged, would cause suspended particulate concentrations to exceed Class I PSD increments. Petition, supra, note 25.

34. These values include "unusual scenic beauty, scientific interest and importance." See Presidential Proclamation No. 1665, 43 Stat. 1914 (June 8, 1923).

35. Secretary Andrus also designated portions of the Dixie National Forest within the petition area as unsuitable for surface mining, citing the same reasons.

36. Petition to Designate Certain Federal Lands in Southern Utah Unsuitable for Surface Coal Mining Operations (Statement of Reasons), No. 79-5-001, 11 ELR 30001 (Dep't of the Interior Jan. 13, 1981). Generally, the OSM Regional Director, within whose region the petition area is located, is delegated to issue final written decisions. However, in this "important and novel" proceeding Andrus chose to exercise his retained authority.

37. 30 U.S.C. § 1272(a)(3)(B), ELR STAT. & REG. 42422.

38. The Presidential Proclamation creating the park was reinforced by the mandates of the National Park Service Organic Act creating the National Park Service which requires the Secretary to preserve the "scenery and the natural and historic objects and the wildlife therein," to "leave them unimpaired for the enjoyment of future generations," and to administer the park in light of the "high public value and integrity of the National Park System." Act of August 25, 1916, 16 U.S.C. §§ 1, 2, 3 & 4.

39. 42 U.S.C. §§ 7401-7642, ELR STAT. & REG. 42201. See note 33, supra.

40. The intervenors were Utah International, Inc. and Nevada Electric Investment Co.

41. In addition to the cases discussed in the text, the Department of the Interior's interim and final regulations have been subjected to a series of complex challenges. See Surface Mining Regulation Litigation, 452 F. Supp. 327, 8 ELR 20407 (D.D.C. 1978) (upholding most provisions of the interim regulations); In re Permanent Surface Mining Regulation Litigation, __ F. Supp. __, 9 ELR 20720 (D.D.C. 1979) (continuing a preliminary injunction against enforcement of the deadline for submission of state programs and denying a preliminary injunction against implementation of the final regulations); In re Permanent Surface Mining Regulation Litigation, 627 F.2d 1346, 10 ELR 20113 (D.C. Cir. Jan. 18, 1980) (affirming the denial of the preliminary injunction against implementation of the final regulations).

42. U.S. CONST. art. 1, § 8, cl. 3.

43. U.S. CONST. amend. V.

44. U.S. CONST. amend. X.

45. Virginia Surface Mining & Reclamation Association v. Andrus, prel, inj. granted, __ F. Supp. __, 9 ELR 20235 (W.D. Va. 1979), prel. inj. vacated, __ F.2d __, 9 ELR 20618 (4th Cir. 1979), summary judgment granted, 483 F. Supp. 425, 10 ELR 20128 (W.D. Va. Jan. 3 & 21, 1980).

46. Indiana v. Andrus, __ F. Supp. __, 10 ELR 20613 (S.D. Ind. June 10, 1980).

47. Star Coal Co. v. Andrus, __ F. Supp. __, 10 ELR 20328 (S.D. Iowa Feb. 13, 1980).

48. In re Permanent Surface Mining Regulation Litigation, __ F. Supp. __, 10 ELR 20208 (D.D.C. Feb. 26, 1980), rev'd in part __ F.2d __, 10 ELR 20526 (D.C. Cir. July 10, 1980).

49. Holmes Limestone Co. v. Andrus, __ F. Supp. __, 11 ELR 20171 (N.D. Ohio Oct. 7, 1980).

50. Texaco, Inc. v. Andrus, __ F. Supp. __ (D.D.C. Aug. 15, 1980).

51. __ F. Supp. __, 10 ELR 20128 (W.D. Va. Jan. 3 & 21, 1980).

52. __ F. Supp. __, 10 ELR 20613 (S.D. Ind. June 10, 1980).

53. __ F. Supp. __, 10 ELR 20328 (S.D. Iowa Feb. 13, 1980).

54. The courts noted that most strip-mined coal travels in interstate commerce and the cumulative effects of stream pollution, floods, landslides, loss of aquatic habitats, erosion, and hydrological imbalances resulting from surface disturbances thus constitute a substantial impact on interstate commerce.

55. These included the approximate original contour provisions and topsoiling requirements, 30 U.S.C. § 1265, ELR STAT. & REG. 42416, and postmining land use provisions, 30 U.S.C. §§ 1257, 1258, ELR STAT. & REG. 42412-42416.

56. 426 U.S. 833 (1976). In that decision the Supreme Court found the Fair Labor Standards Act, which required the states to pay certain minimum wages to state employees, to be unconstitutional when applied to the states because it usurped a sovereign function of the state government.

57. 30 U.S.C. § 1265, ELR STAT. & REG. 42416.

58. 30 U.S.C. § 1272(e), ELR STAT. & REG. 42423.

59. __ F. Supp. at __, 10 ELR at 20134.

60. This standard of review is prescribed by § 526(a)(1) of SMCRA, 30 U.S.C. § 1276(a)(1), ELR STAT. & REG. 42424.

61. 30 C.F.R. § 764.17(a).

62. 5 U.S.C. § 554, ELR STAT. & REG. 41002.

63. __ F. Supp. __, 11 ELR 20171 (N.D. Ohio Oct. 7, 1980).

64. The Supreme Court heard arguments in these two cases on February 24, 1981.

65. For example, § 522(a)(2) requires the regulatory authority to designate areas unsuitable if reclamation pursuant to the requirements of the Act is not "technologically and economically feasible." If the reclamation requirements are found to be unconstitutional, this provision of § 522 will retain little substance.