The 1977 Surface Mining Act Revisited: National Regulatory Program Surmounts Judicial and Legislative Challenges

Surface-mined coal comprises over 50 percent of the nation's annual coal production, and strip mining operations affect hundreds of thousands of acres in more than half of the states.¹ Two years after enactment of the Surface Mining Control and Reclamation Act of 1977 (SMCRA),² substantial progress is finally being made toward establishment of a strong national program for controlling the environmentally detrimental aspects of surface mining. During this period, the Office of Surface Mining Reclamation and Enforcement (OSM), an agency within the Department of the Interior created to administer the Act,³ has been buffeted by funding delays, backstage political pressures,⁴ and incessant court battles with industry, the coal production states, and environmentalists. Indeed, serious challenges to OSM's authority continue to be raised on Capitol Hill. Recently, however, indications are that the beleaguered program is rebounding from these attacks. Although the program continues to be plagued by questions such as the extent to which federal regulations should provide flexibility to account for individual state conditions, OSM should be able to stave off the efforts of a so-far undiscouraged conglomerate of coal states and coal companies seeking to sidetrack the national effort to curb the environmental injuries of unrestrained strip mining.

The Statute

Congressional efforts to enact federal legislation to address this problem⁵ began in 1971 with hearings on a Nixon Administration bill proposing joint federal-state regulation. A bill was finally enacted in 1975 but was vetoed by President Ford because of alleged job losses and reductions in coal production. President Carter, who won the 1976 election with the strong support of environmentalists, finally signed a somewhat watered-down measure into law on August 3, 1977.

The impetus behind passage of the Act was not only the environmental havoc created by strip mining⁶ but the fact that state controls had proven inadequate.⁷ Thus, the purpose of the SMCRA was "to establish a nationwide program to protect society and the environment from the adverse effects of surface mining coal operations."⁸

The device chosen to achieve this goal is a partnership in which the federal government sets protective standards and the states implement and enforce them. Such federal-state programs are by now a familiar pattern in environmental legislation⁹ but in this case a protracted dispute has swirled around the proper division of authority between the federal and state governments. The coal-producing states, with an eye to minimizing the impediments to development of their mineral resources, have attempted to chart for themselves a larger role in standard setting than seems to have been intended by Congress. At the same time, they argue that the federal government has impermissibly intruded in the states' domain.

[9 ELR 10200]

The SMCRA attempts to distinguish the respective functions of the federal and state governments in carrying out its program, but the separation of authorities is less than ideally explicit. On one hand, the statute aims to assure that state surface mining and reclamation standards are not Balkanized so that coal companies cannot simply gravitate toward the states with the least onerous requirements.¹⁰ On the other hand, however, the statute says that one of the purposes is to "assist the States in developing and implementing a program to achieve the purposes of the Act."¹¹

[B]ecause of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States.¹²

The basic statutory theme is thus that the federal government is to establish "a set of national environmental performance standards"¹³ for all coal mining operations which are to be enforced by the states. A state may not, however, unilaterally establish its own regulatory program. The SMCRA mandated an interim regulatory program regime of mining and reclamation standards to be formulated by and administered by OSM. A year after enactment, OSM was to issue permanent regulations establishing performance standards under the SMCRA providing the states with guidance as to procedures and substantive requirements governing the preparation, submission, and approval of their programs. Thereafter, states desiring to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations within their borders must submit to the Secretary of the Interior a program for doing so which is in accord with the SMCRA. Those states must also have sufficient legal and practical enforcement capability to meet the requirements of the Act and any state rules and regulations must be "consistent with the regulations issued by the Secretary"¹⁴ under the Act.

Federal approval of a state program transfers to the state the responsibility for enforcing the federally established standards. Before such approval can occur, however, the state program must be reviewed by the Environmental Protection Agency and other federal agencies with pertinent expertise. Failure of a state to submit an acceptable program or enforce its approved program will result in direct regulation of surface mining in the state by the OSM. Significantly, a state's program may be more stringent than the federal program,¹⁵ however. The congressional conference report emphasized that the SMCRA and OSM's regulations "are minimum standards which may be exceeded by the States."¹⁶

Delay in Funding

Efforts to implement the Act were handicapped from the start. The first major barrier was a seven-month delay in congressional approval of funding for OSM,¹⁷ which left the agency with woefully little resources and only a skeletal staff with which to complete the crucial task of formulating the permanent regulatory requirements and assisting the states in developing their surface mining programs.

The funding delay did not, however, slow to any great extent the first stage in implementing the Act: creation of an interim regulatory program. Within weeks of the President's signing of the SMCRA, the Interior Department proposed regulations for the interim program, and the final interim regulations¹⁸ were issued four months after the SMCRA was enacted, only a month after the statutory deadline. The interim program, which took effect on May 3, 1978, imposes federal standards on all surface mining operations that are currently subject to state regulations. It is basically a transitional program intended to give the federal government authority over surface mining operations for approximately three years until either the state has an approved program in place or the permanent federal program is implemented in the state.¹⁹

Legal Challenges to Interim Program

Promulgation on the interim regulations promptly elicited a number of court challenges. A total of 24 lawsuits were filed by coal mine operators, trade associations, coal producing states, and environmental groups. The suits were consolidated in the federal district court in the District of Columbia, and in two decisions²⁰ Judge Flannery upheld almost all of the interim regulations against procedural and substantive attacks. In essence, the court in In re Surface Mining Regulation Litigation concluded that the Interior Department had adequately considered the economic and energy impacts of the interim regulations prior to their promulgation and that most of the performance standards were valid.²¹ [9 ELR 10201] Environmental groups had challenged a procedure whereby mine operators could receive a limited extension of time in which to comply with certain performance standards, but this too was upheld by the court.

Undaunted by the failure of its challenge to the interim regulations themselves, the coal industry then challenged certain enforcement actions taken pursuant to the interim program. The plaintiffs filed suit in West Virginia, perhaps hoping to find a more receptive forum close to the coal fields. The companies were disappointed, however, when the court upheld the interim enforcement actions.²² In addition, the court ruled that OSM's determination that West Virginia's existing regulations were consistent with the federal requirements did not estop federal enforcement under the interim regime.

Constitutionality of the SMCRA

The only success registered by the coal mining interests was a short-lived preliminary injunction against enforcement of the Act issued by a federal district court in Virginia.²³ In a suit filed by an association of small coal producers in Virginia, the court noted that the Act's strict controls on steep-slope mining would make surface mining of 95 percent of the coal reserves in the state commercially impracticable. In its view, the court found that the plaintiffs had made a strong showing that the SMCRA's reclamation requirements were an unconstitutional taking of property without compensation and that they would suffer irreparable harm in the absence of injunctive relief. Furthermore, the federal defendants failed to show that they would be adversely affected by a preliminary injunction. Because the balance of hardships titled so clearly in the plaintiffs' favor, the court found that a determination of their likelihood of success on the merits was unnecessary.

On appeal, the Fourth Circuit Court of Appeals vacated the injunction²⁴ on the ground that the district court failed to follow the requirements of § 526(c)²⁵ of the Act, which prescribe that a plaintiff show a substantial likelihood of prevailing on the merits of its claim. The district court's failure to make the requisite findings, the court of appeals ruled, conflicted with the congressional intent of the statute and required dissolution of the injunction.

The Permanent Regulatory Program

The interim regulations represented the first tier of the SMCRA's regulatory program, and the permanent regulations constitute the second and more important phase. Section 501(b)²⁶ of the Act directs OSM to promulgate the permanent rules within a year after enactment. The permanent program is to serve as the basic guide for the preparation, submission, and approval of state programs by establishing performance standards conforming to the detailed provisions of Title V²⁷ of the Act. Proposed state programs must be submitted to the OSM within 18 months of enactment of the SMCRA. The Secretary could extend this deadline by six months if the authority for a state program depended upon state legislative action. After a state program is submitted, OSM has six months to approve or disapprove it. Disapproval, followed by the state's failure to resubmit an acceptable program within the allowed time period, results in OSM taking over regulation of surface mining operations in a state. According to the statutory timetable, OSM had to promulgate its permanent regulations by August 3, 1978, and states were required to submit their programs by August 3, 1979.

It was to the permanent regulatory phase that the initial delay in OSM's funding caused the most damage. The seven-month wait for appropriations delayed by an identical seven months the agency's promulgation of the permanent regulations. The massive document, issued on March 13, 1979,²⁸ details performance standards and design criteria, describes procedures and requirements for the submission of state programs, and establishes procedures for the implementation of federal programs in states without an approved state program and on federal lands.

Notwithstanding OSM's slow start in promulgating permanent regulations, the agency attempted to hold the states to the statutory requirement that their programs be submitted by August 3, 1979.²⁹ This meant that states had less than five months to conform their programs to the provisions of the permanent regime instead of the twelve-month period contemplated in the statute.

A second area of conflict over the permanent program is the degree of consistency required between state programs and the SMCRA and its implementing regulations. The permanent regulations³⁰ reiterate the statutory mandate that the SMCRA and its regulations supersede state provisions only to the extent that they are less stringent than federal requirements. Any state law or regulation which provides for more stringent land use and environmental controls, or for which there is no parallel federal requirement, will not be deemed inconsistent with the Act.

The SMCRA does, however, speak in terms of allowing variations from the federal program to account for special local conditions.³¹ The regulations attempt to implement [9 ELR 10202] this concept through what has become known as the "state window" provision.³² When a state submits its proposed program, it may, with data supporting its submission, request approval for a variance from any standard of the federal regulatory scheme if the proposed alternative "is necessary because of local requirements or local environmental or agricultural conditions." OSM has noted that portions of the SMCRA authorize a certain degree of flexibility for the states in developing their programs, but since the underlying principle of the Act is the establishment of minimum national standards, the agency views the federal regulations as establishing the minimum level of environmental control. The proposed state alternative, therefore, must nonetheless be "in accordance with the applicable provisions of the Act and consistent with the regulations."³³

Legal Challenges to the Permanent Program

As with the interim program, the permanent regulatory program was quickly challenged in federal court. And as was the case with the interim program, Judge Flannery upheld the permanent regulations against challenges from both coal interests and environmentalists.³⁴ The court did, however, respond to one important state concern by enjoining application of the August 3, 1979 deadline for submission of state programs. The court reasoned that because of the importance of these regulatory programs, it was necessary for the states to have the full 12 months contemplated by the statute in which to perpare adequate plans. Rushing to meet an unreasonably short deadline would simply result in inadequate state programs that would likely not win OSM approval unless revised and resubmitted. The states, therefore, in the court's view, should not have to suffer because of OSM's congressionally induced failure to meet its own deadline in issuing the permanent regulations. Recognizing that this postponement of state submissions would push up against the June 3, 1980 deadline for completion of federal programs for direct regulation in the absence of approved state plans, the court took comfort in the fact that Congress was then considering just such an extension and declined toi postpone that deadline as well.

Congressional Action

On June 25, 1979, Senator Jackson (D-Wash.) introduced a bill to extend the deadlines for submission of state programs and the imposition of federal superseding programs. This measure, S.1403,³⁵ was initially aimed only at overcoming the problems that resulted from OSM's delay in promulgating the permanent regulations. As the measure was reported from the Senate Committee on Energy and Natural Resources,³⁶ the revised deadlines were moved to February 3, 1980 for the submission of state programs and June 3, 1981 as the date for imposition of federal programs. In addition, the reported version contains a substantive provision which would delete the requirement that state programs be consistent with the permanent federal regulations,³⁷ requiring instead that the state programs be consistent only with the Act itself. Concern that this major change might have the effect of obviating the federal regulatory program led Senator Jackson and seven other committee members to oppose the bill, but 10 members supported the amended version, and it was favorably reported.

Intense lobbying by the coal companies and the coal-producing states enhanced the widespread perception that OSM was oblivious to individual state problems and lead the Senate to pass S.1403 by a substantial margin.³⁸ While there was general agreement that the deadlines should be pushed back to allow sufficient time for the states to develop their programs and for OSM to evaluate them, there was heated debate over the advisability of deleting the requirement of consistency between the state program and the federal regulations. The basic argument of proponents of this provision, identified with Governor Rockefeller or West Virginia because of his heavy lobbying on its behalf, was that absolute consistency amounted to federal primacy over surface mining regulation rather than the equitable balance of authority with allowance for varying state conditions originally envisioned by Congress. Opponents countered with the warning that deleting the consistency requirement would turn back the clock to the days of inconsistent and inadequate state regulation which the Act sought to banish.

S.1403 may well go no farther. Chairman Udall (D-Ariz.) of the Subcommittee on Energy and Environment of the House Committee on Interior and Insular Affairs, to which the bill was referred, favors extension of the deadlines but adamantly opposes deletion of the requirement for consistency with the federal regulations. He has thus refused to schedule hearings on the bill.Interior Secretary Andrus is of like mind and has promised to recommend a veto of S.1403 if it reaches the President's desk in the form passed by the Senate.

Discussion

The move to extend the statutory deadlines for submission and approval of state regulatory programs carries a great deal of momentum. Indeed, in the wake of Judge Flannery's decision, OSM has already amended its permanent regulations to extend the deadline for submitting state programs to March 3, 1980,³⁹ which would allow 10 days short of the statutory 12 months for states to conform their programs to the federal regulations. Although this additional delay in the imposition of controls over an activity that has already disdained protection of the environment for too long is unfortunate, it is widely viewed [9 ELR 10203] as a reasonable response under the circumstances. Thus, a one-year delay in the deadlines may well be an acceptable price if the result is adequate time for the states to develop sound programs on the first try, thus preserving the major state role envisioned by the SMCRA. Furthermore, surface mining will not be entirely free from environmental controls in the meantime because the interim program remains in effect until either a state program has been approved or a program of direct federal regulation is implemented.

Of greater concern, however, is the proposed deletion of the requirement that the state program be consistent with the federal regulations. The key issue here is the states' need for flexibility from the federal standards. Some feel that the "state window" is inadequate in that it allows little or no flexibility and goes against the SMCRA's perceived intent of state primacy;⁴⁰ others, however, feel that it may open too wide a loophole in the federal program by allowing economic and political concerns to override the need for firm surface mining controls.⁴¹

Regardless, the Rockefeller Amendment may substantially undercut Congress' intent that there be uniform, nationwide, minimum federal standards. Although lawsuits charging that state programs are inconsistent with the federal regulations are inevitable, there would doubtless be even more protracted litigation if the state programs need conform only to the less detailed standards of the SMCRA, and this would further delay implementation of state programs. More importantly, it would tend to shift the burden of policing state programs from OSM to the courts. Furthermore, because different courts would undoubtedly reach different conclusions, there would be less likelihood of national uniformity, in contradiction to the design of the Act. The result of all this would be uncertainty for the coal industry at the very time that regulatory predictability is needed for the industry to expand production to ease the nation's energy shortage.

A central tenet of current national policy is that coal is an important and domestically available source of energy in the near future, be it for synthetic fuels or for conventional power generation. A rapid increase in coal production, however, must be accompanied by careful protection of the environment against the damage that can be caused by uncontrolled surface mining.⁴² Some have argued that coal mining operations have slowed because of a fear that environmental regulations under SMCRA will make production uneconomic. On the other hand, there are indications that over-production has led to an excess of supply in at least some areas.

Conclusion

Congress passed the SMCRA to protect the land from the harms that historically had all to often accompanied strip mining. Though the Act has yet to be fully implemented, and only a few states have even submitted programs for OSM review, it has already come under heated congressional attack. Much of this controversy is focused on anticipated difficulties which may well fail to materialize, and so far there is no indication that the "state window" will fail to provide sufficient flexibility for special state or local conditions. Removing the crucial requirement that state programs be consistent with OSM's regulations seems premature and contrary to the statutory policy of assuring that a set of strong and nationally uniform standards govern surface mining activities. Congress should let such protections take hold under the Act rather than bend to political pressures and eviscerate in its infancy a legislative scheme that took almost a decade of effort to construct.

1. See H.R. REP. 218, 95th Cong., 1st Sess. 72-77 (1977).

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. See 30 U.S.C. § 1211, ELR STAT. & REG. 42403.

4. Aggressive pursuit of the environmental safeguards contained in the SMCRA led to the firing late last summer of two important Interior Department officials connected with the strip mining program: William M. Eichbaum, then Associate Solicitor for Surface Mining, and Hope M. Babcock, then Deputy Assistant Secretary for Energy and Minerals Regulation.

5. For a useful guide to the congressional deliberations leading up to passage of the SMCRA, see Note, A Summary of the Legislative History of the Surface Mining Control and Reclamation Act of 1977 and the Relevant Legal Periodical Literature, 81 W. VA. L. REV. 775 (1979).

6. Section 101 of the SMCRA lists some of these harms to the environment:

(c) many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property, by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources;

(h) there are a substantial number of acres of land throughout major regions of the United States disturbed by surface and underground coal on which little or no reclamation was conducted, and the impacts from these unreclaimed lands impose social and economic costs on residents in nearby and adjoining areas as well as continuing to impair environmental quality; ….

30 U.S.C. §§ 1201(c), 1201(h), ELR STAT. & REG. 42402.

7. "For a variety of reasons, including the reluctance of the States to impose stringent controls on its industry, serious abuses continue." H.R. REP. NO. 218, 95th Cong., 1st Sess. 58 (1977).

8. Section 102(a), 30 U.S.C. § 1202(a), ELR STAT. & REG. 42402.

9. See, e.g., § 402 of the FWPCA, 33 U.S.C. § 1342, ELR STAT. & REG. 42141, which established the national pollutant discharge elimination system (NPDES) permit program. See also §§ 109 and 110 of the Clean Air Act, 42 U.S.C. §§ 7409 and 7410, ELR STAT. & REG. 42211, 42212, calling for federal establishment of air quality standards and approval of state implementation plans.

10. Section 101(g) states that:

(g) surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders; ….

30 U.S.C. § 1201(g), ELR STAT. & REG. 42402.

11. Section 102(g), 30 U.S.C. § 1202(g), ELR STAT. & REG. 42402.

12. Section 101(f), 30 U.S.C. § 1201(f), ELR STAT. & REG. 42402.

13. H.R. REP. NO. 218, 95th Cong., 1st Sess. 57 (1977).

14. Section 503(a)(7), 30 U.S.C. § 1253(a)(7), ELR STAT. & REG. 42411.

15. Section 505, 30 U.S.C. § 1255, ELR STAT. & REG. 42411.

16. H.R. REP. NO. 493, 95th Cong., 1st Sess. 102 (1977).

17. Supplemental Appropriations Act, 1978, Pub. L. 95-240, 92 Stat. 107 (Mar. 7, 1978).

18. 42 Fed. Reg. 62639 (Dec. 13, 1977), codified at 30 C.F.R. parts 700, 710, 715-718, 720-723, 725, 740, 795, 830. The rapid release of the interim regulations was due to an Interior Department task force that had been working since the previous spring, with extensive input from states and the public, on preparing the interim rules.

19. For a detailed discussion of the interim program, see Williams, A Step-by-Step Analysis of the Interim Federal Surface Mining Program, 8 ELR 50001 (1978).

20. In re Surface Mining Litigation, 452 F. Supp. 327, 8 ELR 20407 (D.D.C. May 3, 1978) (motion for preliminary injunction); 456 F. Supp. 1301 (D.D.C. Aug. 24, 1978) (motions for summary judgment).

21. For a contrary view, see Gage, the Failure of the Interim Regulatory Program Under the Surface Mining Control and Reclamation Act of 1977: The Need for Flexible Controls, 81 W. VA. L. REV. 595 (1979).

22. Union Carbide Corp. v. Andrus, __ F. Supp. __, 9 ELR 20701 (S.D.W. Va. July 17, 1979).

23. Virginia Surface Mining & Reclamation Ass'n v. Andrus, __ F. Supp. __, 9 ELR 20235 (W.D. Va. Feb. 14, 1979).

24. Virginia Surface Mining & Reclamation Ass'n v. Andrus, __ F.2d __, 9 ELR 20618 (4th Cir. Aug. 10, 1979).

25. 30 U.S.C. § 1276, ELR STAT. & REG. 42424.

26. 30 U.S.C. § 1251(b), ELR STAT. & REG. 42410.

27. Sections 501-529, 30 U.S.C. §§ 1251-1279, ELR STAT. & REG. 42410-25 (Control of the Environmental Impacts of Surface Coal Mining).

28. 44 Fed. Reg. 14901 (Mar. 13, 1979) (to be codified in 30 C.F.R. subchs. A-D, F, G, J-L, P, R, S). The Federal Register entry contains 153 pages of regulations and 309 pages of explanation.

29. 30 C.F.R. § 731.12, 44 Fed. Reg. 15324.

30. 30 C.F.R. § 730.11, 44 Fed. Reg. 15324. Cf. SMCRA § 505, 30 U.S.C. § 1255, ELR STAT. & REG. 42411.

31. See text at note 12, supra. Under § 201(c)(9) of the SMCRA, one function of OSM is to:

assist the States in the development of State programs for surface coal mining and reclamation operations which meet the requirements of the Act, and at the same time, reflect local requirements and local environmental and agricultural conditions; ….

30 U.S.C. § 1211(c)(9), ELR STAT. & REG. 42403.

32. 30 C.F.R. § 731.13, 44 Fed. Reg. 15324.

33. 30 C.F.R. § 731.13(c)(1), 44 Fed. Reg. 15324. See also, 44 Red. Reg. 14951-52. The "state window" seems to hold out the hope of significant variances and then to dash the hope with a reiteration of the "consistency" concept. As no formal approval or disapproval of a state program has yet taken place, it is not yet clear how this will work in practice.

34. In re Permanent Surface Mining Regulation Litigation, __ F. Supp. __, 9 ELR 20720 (D.D.C. Aug. 21, 1979).

35. 96th Cong., 1st Sess. (1979).

36. S. REP. NO. 271, 96th Cong., 1st Sess. (1979).

37. See note 14, supra.

38. The vote was 68-26. 125 CONG. REC. 12387 (daily ed. Sept. 11, 1979).

39. 44 Fed. Reg. 60969 (Oct. 22, 1979).

40. See, e.g., S. REP. NO. 271, 96th Cong., 1st Sess. 13-14 (1979).

41. Rochow, The Far Side of the Paradox: State Regulation of the Environmental Effects of Coal Mining, 81 W. VA. L. REV. 559, 592 (1979).

42. As § 101(d) of the SMCRA declares:

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.

30 U.S.C. § 1201(d), ELR STAT. & REG. 42402.