In re Permanent Surface Mining Regulation Litigation

No. 80-1308 (D.C. Cir. July 10, 1980)

The court holds that the Secretary of the Interior, in promulgating minimum requirements for state regulatory programs under the Surface Mining Control and Reclamation Act, may not demand that more information be obtained from applicants for coal-mining permits than that specified in §§ 507 and 508 of the Act. Basing its reversal of the district court's decision, 10 ELR 20208, principally upon a broad reading of Congress' intent to vest primary authority for surface mining control in the states, the court reasons that the Secretary is limited to assuring that the detailed requirements set forth in the Act are contained in state programs. The Secretary's supervisory authority may not otherwise interfere with state discretion.

In a concurring opinion, Judge MacKinnon observes that the arguably unreasonably short compliance period set by Congress for promulgating the federal regulatory program does not justify construing the Act against its clear terms to vest federal authorities with a broad regulatory power that would stifle local initiative. In dissent, Judge Greene contends that the Secretary acted within his wide discretion to establish detailed regulations reasonably related to the principal statutory objective of minimizing the adverse effects of strip mining.

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 TAMM and MacKINNON, Circuit Judges, and HAROLD H. GREENE,^* U.S. District Judge for the District of Columbia.

[10 ELR 20526]

TAMM, Circuit Judge:

In this appeal from a partial final judgment of the United States District Court for the District of Columbia, we must determine whether the Secretary of the Interior may prescribe minimum requirements for coal-mining permit applications that states must adopt before they can assume authority for regulating coal mining within their borders pursuant to the Surface Mining Control and Reclamation Act of 1977 (Surface Mining Act or Act), 30 U.S.C. §§ 1201-1328 (Supp. I 1977). We conclude that the Secretary lacks the power to demand that states require applicants to provide more information than that specified in sections 507 and 508 of the Act, 30 U.S.C. §§ 1257-1258. Therefore, we reverse the judgment of the district court and remand the case with instructions to remand the regulations at issue to the Secretary.

Congress adopted the Surface Mining Act in an effort to balance the need for coal in satisfying the nation's energy requirements against the environmental dangers posed by mining operations. See Act § 102, 30 U.S.C. § 1202. Congress also concluded that "because of the diversity in terrain, climate, biologic, chemical, and other physical conditions, 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. . . ." Id. § 101(f), 30 U.S.C. § 1201(f). Congress carefully devised a statutory scheme that would take all these concerns into account. As we recently noted:

The Act provides a truly federalist distribution of regulatory authority for the coal-mining industry. After a transition period of direct regulation under the Secretary of the Interior, each state in which coal is mined has the option of submitting to the Secretary its own program for supervising mining and reclamation within its borders. Act § 503, 30 U.S.C. § 1253. The Secretary, after following certain procedures, must approve the program if he finds it adequate to protect environmental concerns that lay behind the adoption of the Act. Once its plan is approved, the state assumes responsibility for enforcing the Act. Id. If a state fails to submit a satisfactory program, or if it does not wish to assume jurisdiction over mining within its borders, the Secretary must devise a program for that state suited to its particular needs. Id. § 504(a), 30 U.S.C. § 1254(a). Whether regulation is in federal or state hands, a firm wishing to engage in surface mining must obtain a permit from the regulatory authority before it may begin or continue its operations. Id. § 506(a), 30 U.S.C. § 1256(a). The Act spells out in detail the minimum information that an applicant must submit to the regulatory authority to accompany its permit request. See id. § 507(b), 30 U.S.C. § 1257(b).

In re Permanent Surface Mining Regulation Litigation, Nos. 79-2073 & 79-2116, slip op. at 3 (D.C. Cir. Jan. 18, 1980) (per curiam) (appeal from denial of preliminary injunction).

In March of 1979, the Secretary issued permanent regulations under the Act. See 44 Fed. Reg. 14902, 15312-463 (1979) (codified at 30 C.F.R. pts. 700-890 (1979)).¹ Among these rules are specifications for the minimum information that a state must require in a permit application before the Secretary will approve the state's program and allow it to assume control of mining within its borders. See 30 C.F.R. pts. 778-784. These requirements are much more detailed than the information the Act itself prescribes for applicants to submit to the appropriate regulatory authority. Compare id. with Act §§ 507-508, 30 U.S.C. §§ 1257-1258.²

[10 ELR 20527]

Various mining states, firms, and trade associations filed a total of nine actions in the United States District Court for the District of Columbia challenging most aspects of the Secretary's permanent regulations, including the information requirements. The district court consolidated these cases and divided the issues involved into two groups, one involving statutory and other general questions and the other involving disputes on the record. The court then refused to enter a preliminary injunction against enforcement of the permit application rules. On appeal, this court affirmed the denial of interim relief as being within the district judge's discretion. In re Permanent Surface Mining Regulation Litigation, Nos. 79-2073 & 79-2116 (D.C. Cir. Jan. 18, 1980) (per curiam), aff'g Civ. No. 79-1144 (D.D.C. Aug. 21, 1979) (order denying preliminary injunction). In the process, we stated that we were intimating no view on the merits of those appellants' claims. Id., slip op. at 5.

Since our January opinion, the district court has reached its decision on the first group of issues. As part of its opinion, the district court concluded that "the structure of the Act, the general grants of rulemaking authority, and Section 501(b) support the Secretary's power" to promulgate minimum requirements for permit applications under state programs that exceed the information required under the Act. In re Permanent Surface Mining Regulation Litigation, Civ. No. 79-1144, at 31 (D.D.C. Feb. 26, 1980) (memorandum and order) [hereinafter cited asDistrict Court Opinion].³ See generally id. at 30-33. On the motion of Peabody Coal Company, the district court found no just reason to dalay entering judgment on this issue and, on March 17, entered a final judgment on the validity of these rules. See generally FED. R. CIV. P. 54(b). Peabody, a party to the earlier appeal regarding the preliminary injunction, filed this appeal. To ensure a prompt disposition of the significant question presented, this court granted expedited consideration before this division of the court, which heard the appeal concerning preliminary relief.

II.

We begin our effort to construe the Secretary's powers under the Surface Mining Act by examining the language of the Act itself. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197 (1976); Zerilli v. Evening News Association, No. 79-1298, slip op. at 6 (D.C. Cir. June 11, 1980). The Secretary relies primarily on two provisions to demonstrate that Congress granted him authority to issue minimum standards for state permit applications. We do not believe these sections are so clear as the Secretary contends.

The first of the two provisions, section 201(c)(2), authorizes the Secretary to "publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act . . . ." 30 U.S.C. § 1211(c)(2). The Secretary asserts that this clause is a grant of general rulemaking power that enables him to impose additional information requirements for permit applications. We have two problems with this analysis. First, section 201(c)(2) itself states that the regulations must "be necessary to carry out the purposes and provisions of this Act . . . ." This language still begs the question of whether prescribing additional information requirements for states to demand in permit applications is consistent with the Act. We thus are left precisely where we began. Second, we are not satisfied with either party's invocation of the long-standing canon of statutory construction that an act's provisions should be read so as to render none superfluous. See generally 2A SUTHERLAND STATUTORY CONSTRUCTION § 46.06 (4th ed. C. Sands 1973). Peabody initially argued that reading section 201(c)(2) as a grant of general rulemaking authority makes the twenty specific grants in the Act meaningless. The district court turned this proposition around to hold that reading section 201(c)(2) otherwise makes it superfluous. See District Court Opinion at 32. In short, any broad reading of the Act's rulemaking provisions will make section 201(c)(2) redundant of the specific grants or vice versa. We cannot base our decision on a method of statutory construction that, when applied to this act, is so hopelessly circular. Cf. American Radio Relay League, Inc. v. FCC, No. 78-1853, slip op. at 7 (D.C. Cir. Feb. 22, 1980) (courts will not give independent meaning to a word that, in context, appears to be simply surplusage).

Section 501(b) of the Act gives us more pause. It empowers the Secretary to "promulgate and publish . . . regulations . . . establishing procedures and requirements for preparation, submission, and approval of State programs . . . ." 30 U.S.C. § 1251(b) (emphasis added). This language can be read to allow regulations detailing minimum standards that all state programs must meet to receive the Secretary's approval. Equally plausible, however, is a construction that allows these requirements to pertain only to areas in which the Act otherwise allows the Secretary to set nationwide performance standards for states to enforce. See Act §§ 515-516, 30 U.S.C. §§ 1265-1266.⁴ Alternatively, section 501(b) could pertain only to nonsubstantive requirements for processing state programs through the Secretary's office. In any event, the language of the statute "is hardly free from ambiguity, and there is no clear literal meaning that we are bound to give effect." United States v. Davis, [10 ELR 20528] No. 78-2246, slip op. at 8 (D.C. Cir. Oct. 26, 1979).⁵

We next turn to the Act's legislative history in the hope that it will shed some light on the statute's words. Unfortunately, this, too, is a blind alley. The Senate report, the House report, the conference report, and the floor debate are all slient on whether the Secretary may add application specifications beyond those enacted in sections 507 and 508.

The Secretary at one point refers us to the House report's discussion of section 501(b). This passage states, in full: "Subsection (b) gives the Secretary up to 1 year to promulgate regulations to implement the full regulatory program including technical requirements, permits process[es], and procedures for submission of State programs." H.R. REP. NO. 95-218, 95th Cong., 1st Sess. 62 (1977), reprinted in [1977] U.S. CODE CONG. & AD. NEWS 593, 601. Once again, we do not believe this language is clear at all. The single sentence appears in a short summary of section 501 and simply describes section 501(b) as giving the Secretary rulemaking power for the "full regulatory program," then lists specific examples. It does not purport to define what the "full regulatory program" and its limits are. To determine what the Secretary may do in relation to "technical requirements, permit process[es], and procedures for submission of State programs," as well as other areas, one still must turn to the substantive provisions of the Act that allocate authority between the Secretary and state regulatory agencies.The Secretary, the parties agree, is empowered to establish technical performance standards.⁶ Likewise, he clearly has full control over the permitting process in two instances: mining on federal land, see Act § 523, 30 U.S.C. § 1273, and mining in states that do not submit satisfactory regulatory programs, see id. § 504, 30 U.S.C. § 1254. We still must decide how much further his authority over the permitting process extends — in particular, how control over permitting in allocated between the Secretary and the state regulatory authority when the state wishes to assume responsibility for mining within its borders.

III.

With no clear meaning arising from the language of the Act itself or Congress's discussion of it, we must look more broadly at the Act's purposes and structure to decide which approach is more faithful to Congress's overall design. See, e.g., United States v. Bornstein, 423 U.S. 303, 310 (1976). Our examination indicates that Congress intended to vest in the states primary regulatory and decisionmaking authority and to place the Secretary in an oversight role to ensure that the states provide some minimal level of regulation and control. From there, we conclude that the Act itself defines the minimum information permit applications must contain and that the Secretary's authority in this area is limited to determining whether the states have satisfied that minimum. With this understanding, we hold that the Secretary lacks power to demand that states require more information from applicants than the Act itself spells out.

Congress listed among the purposes of the Act a desire to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations . . . ." Act § 102(a), 30 U.S.C. § 1202(a). It nonetheless found that due to variations in local conditions, "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 . . . ." Id. § 101(f), 30 U.S.C. § 1201(f). The federal government, of course, "assist[s] 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 . . . ." Id. § 201(c)(9), 30 U.S.C. § 1211(c)(9) (emphasis added). Accord, id. § 102(g), 30 U.S.C. § 1202(g). The overall structure thus is one in which the Act will "be enforced by the State[s] with backup authority in the Department of the Interior." H.R. REP. NO. 95-218, supra at 57, reprinted in [1977] U.S. CODE CONG. & AD. NEWS at 595. See id. at 129 ("primary regulatory authority" delegated to states with "a limited Federal oversight role" in the enforcement program), reprinted in [1977] U.S. CODE CONG. & AD. NEWS at 661.

The Act's allocation of authority reflects these aims. Under an approved state program, the local regulatory authority decides whether to issue permits for coal mining. Act § 510, 30 U.S.C. § 1260. The state authority must operate within certain boundaries prescribed by the Act, and its determination whether to grant a permit request is reviewable in state courts, id. § 526(e), 30 U.S.C. § 1276(e), but the Secretary is not involved in this process.⁷ Only if the state authorities subsequently fail to enforce their local program may the Secretary assume control of mining within that state, and he may do so then only after following certain procedures in which the state participates. Id. § 521(b), 30 U.S.C. § 1271(b). This scheme leaves broad discretion in state officials while ensuring, through federal oversight, that the minimum requirements of the Act are achieved.⁸

[10 ELR 20529]

Ordinarily, logic dictates that the entity vested with the power to make a given decision implicitly is left with the power to determine what information it needs to make that decision. In the case of state regulatory authorities, however, Congress wished to make sure that the permit-granting entities would have adequate information:

Experience has shown that without a thorough and comprehensive data base presented with the permit application, and absent analysis and review by both the agency and by other affected parties based upon adequate data, [this] judgment has often traditionally reflected the economic interest in expanding a State's mining industry. Valid environmental factors tend to receive short shrift. To meet this problem the bill delineates in detail the type of information required in permit applications in sections 507 and 508 and the criteria for assessing the merits of the application in section 510.

H.R. REP. NO. 95-218, supra at 91, reprinted in [1977] U.S. CODE CONG. & AD. NEWS at 627 (emphasis added). These informational specifications are the "minimum uniform requirements" that all states must demand of permit applicants. S. REP. NO. 95-128, 95th Cong., 1st Sess. 53 (1977).

That Congress chose to mandate a minimum amount of information in permit applications does not mean that it intended to give the Secretary the power to require even more information when he is not the permitgranting authority.Indeed, in a system that, as one of its central goals, vests "primary governmental responsibility" in the states, it is more reasonable to construe sections 507 and 508 as carefully devised exceptions to the general, commonsense proposition that the decisionmaker is in the best position to decide what information it needs. True, the Secretary is the federal official who approves state programs, but the power to approve or to reject state programs does not necessarily include the power to specify the criteria of decision. The Act goes into unusually great detail in stating what a permit application must contain. It also states in detail the factors that must be present before the Secretary may approve a proposed program. See Act § 503, 30 U.S.C. § 1253. A construction that would allow the Secretary to expand these requirements as he saw fit in effect would permit him, by regulation, to take away the very discretion Congress sought to vest in the states.⁹ Like the camel sticking his nose in the test, the Secretary easily could take over entirely. We will not construe a statute "in a manner which runs counter to the broad goals which Congress intended it to effectuate." FTC v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968).

Our decision does not mean that the Secretary plays no role in the implementation of sections 507 and 508. On the contrary, under the Act, he must refuse to approve any particular state's proposed program if it appears inadequate to obtain the information sections 507 and 508 require of applicants. The Secretary may issue interpretive rulings, if he so desires, clarifying what he believes individual provisions of these two sections mean. He also is free to recommend that state authorities adopt application requirements more stringent than those spelled out in the Act itself. Finally, it a state fails to abide by its responsibilities under the Act, the Secretary may enforce the Act against particular mines, see Act § 521(a)(2), 30 U.S.C. § 1271(a)(2), and, after following certain procedures, assume full authority for issuing and enforcing permits within that state, see id. § 521(b), 30 U.S.C. § 1271(b). Until such inadequate enforcement appears, however, the Secretary's actual power to compel compliance with his wishes is limited to approving state programs based on the criteria set forth in the Act, see id. § 503, 30 U.S.C. § 1253, and to monitoring success through the federal inspection system, see id. § 517, 30 U.S.C. § 1267.¹⁰

IV.

Congress intended states to assume the "primary governmental responsibility" for enforcing the Surface Mining Act. To ensure states would live up to this duty, [10 ELR 20530] the Secretary of the Interior was given certain supervisory power. We would turn Congress's scheme on its head were we to allow that supervisory authority to consume state discretion and to reduce state power to a purely ministerial implementation of a federally devised program.

We realize, of course, that our construction of the Act is the product of a general view of the distribution of authority Congress was trying to strike. Neither the language of the statute itself nor its legislative history has given us a clear path to take. Recent Senate activity concerning these provisions, see S. 1403, 96th Cong., 1st Sess., 125 CONG. REC. S12350 (daily ed. Sept. 11, 1979),¹¹ gives us some consolation, however, for we assume that Congress will correct our decision if it disagrees or will change the scheme it enacted if it now believes another approach would be more satisfactory.

For the foregoing reasons, the judgment of the district court is reversed and the case is remanded with instructions that the regulations be remanded to the Secretary for further consideration in light of this opinion.

It is so ordered.

* Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).

1. Many of the parties to the present litigation in the district court also challenged the Secretary's interim regulations promulgated under §§ 501-502 of the Act, 30 U.S.C. §§ 1251-1252. See In re Surface Mining Regulation Litigation, Nos. 78-2190, 78-2191, & 78-2192 (D.C. Cir. May 2, 1980), aff'g in part, rev'g in part, and remanding 425 F. Supp. 327, 456 F. Supp. 1301 (D.D.C. 1978).

2. Numerous provisions of the regulations go far beyond the language of §§ 507 and 508. For example, the rules specify that maps filed with a permit application must identify the uses of existing buildings and the location of roads, cemeteries and Indian burial grounds, park trails, and areas listed or eligible for listing in the National Register of Historic Places. 30 C.F.R. §§ 779.24(d), (h)-(k), 783.24(d), (h)-(k). The Act does not require submission of this information. See Act § 507(b)(13), 30 U.S.C. § 1257(b)(13). Under the regulations, the applicant also must list all other permits needed to conduct the proposed mining activities and include in the list the name and address of the regulating authority, permit identification numbers, and the present status of these other permit applications. 30 C.F.R. §§ 778.19, 782.19. The applicant must describe existing structures and provide maps identifying the location of various buildings, facilities, and operational areas to be used in mining activities. Id. §§ 780.14, 784.14. The applicant's reclamation plan must describe stream diversions, impacts on parks and historic places, road relocations, disposal of excess wastes, and transportation facilities. Id. §§ 780.29-.38, 784.17-.19, .22. The Act has no comparable provisions for any of the foregoing requirements, either. See Act §§ 507-508. Likewise, the regulations specify in great detail what the blasting plan required under § 507(g), 30 U.S.C. § 1257(g), must include. 30 C.F.R. §§ 780.13, 784.13.

3. For the text of § 501(b), 30 U.S.C. § 1251(b), see page 7 infra.

4. Peabody, in its initial brief filed in conjunction with the appeal of the denial of preliminary relief, conceded that the Secretary may issue regulations establishing nationwide performance standards under §§ 515 and 516 of the Act, 30 U.S.C. §§ 1265-1266. See In re Permanent Surface Mining Regulation Litigation, Nos. 79-2073 & 79-2116, Joint Brief of Appellants at 7, 19. We assume, but do not decide, that this construction is correct.

5. The Secretary relies less heavily on two other provisions of the Act. The first is the requirement that states demonstrate they have "the capability of carrying out the provisions of this Act and meeting its purposes through . . . (7) rules and regulations consistent with regulations issued by the Secretary pursuant to this Act." Act § 503(a), 30 U.S.C. § 1253(a). The second defines "State program" as meaning "a program established by a State pursuant to section 503 . . . in accord with the requirements of this Act and regulations issued by the Secretary pursuant to this Act . . . ." Id. § 701(25), 30 U.S.C. § 1291(25). These clauses have the same problem of circularity we found with § 201(c)(2), as discussed in text: the state must conform only to those regulations that are consistent with the Act, so we still must decide whether these particular regulations conform to the Act's purposes.

6. See note 4 supra.

7. While the bill that became the Surface Mining Act was pending, Secretary of the Interior Cecil K. Andrus wrote to Representative Morris K. Udall, chairman of the House committee considering the bill, and asked in part that his Department be given authority to intervene in the permit process. See H.R. REP. NO. 95-218, 95th Cong., 1st Sess. 156 (1977) (letter from Sec'y Andrus to Rep. Udall), reprinted in [1977] U.S. CODE CONG. & AD. NEWS 593, 687. Congress apparently rejected this request.

8. The Secretary insists that he has left this discretion intact through the so-called "state window" provision in the regulations. This section allows states to propose alternatives that are "consistent with the regulations" the Secretary has issued. 30 C.F.R. § 731.13(c)(1). The language of this provision, however, is deceptively comforting. Elsewhere, the regulations define "consistent with" as meaning "no less stringent than and meet[ing] the applicable provisions of the regulations" the Secretary has issued. Id. § 730.5(b). Thus, there is little room for states to maneuver. The "window" would be more accurately described as a one-way mirror.

9. The Secretary argues that his construction of the Act deserves considerable deference because his Department is the agency Congress has empowered to implement the Act. See, e.g., Whirlpool Corp. v. Marshall, 100 S. Ct. 883, 890 (1980). Despite this general rule, a court always remains free to reach its own conclusion concerning what a particular statute means. E.g., Skidmore v. Swift, 323 U.S. 134, 139-40 (1944). In deciding how much deference to pay an agency's interpretation, a court must look in part to "the nature of [the agency's] expertise." Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). In this case, the question of whether the Secretary may issue detailed regulations about what a permit application must contain is "a narrow legal issue that is readily susceptible of judicial resolution." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 48 U.S.L.W. 4658, 4662 (U.S. June 10, 1980). Moreover, the fundamental issue in the case before us is whether Congress intended to vest in the Secretary discretion over the contents of permit applications — in other words, whether Congress intended to give him the very discretion on which he now relies. Under these circumstances, we feel free to reach a decision based on our own independent analysis.

For similar reasons, we must reject the Secretary's reliance on the Supreme Court's decision in E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977). In du Pont, the Court upheld the authority of the Administrator of the Environmental Protection Agency to set precise, industrywide standards for effluent emissions under § 301 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 3133 (1976). Those regulations thus concerned the substantive performance standards, which Congress clearly authorized the Administrator to set. The regulations at issue in this appeal, however, do not relate to substantive environmental standards, over which we have assumed the Secretary has complete control, see pages 7-8 and note 4 supra, but to information that the permit-granting authority requires for the application process. Furthermore, the language of the statute in du Pont was far clearer in authorizing the Administrator of EPA to set performance standards than is this Act concerning the Secretary of the Interior's power over application requirements.

10. Because we conclude that the regulations at issue violate the Act, we do not reach Peabody's contention that the Act, if it did authorize the regulations, would violate the tenth amendment.

11. This bill in part would delete the language in § 503(a)(7) of the Act, 30 U.S.C. § 1253(a)(7), that state laws and regulations must conform with the Secretary's regulations. See note 3 supra. The bill passed the Senate on September 11, 1979. See 125 CONG. REC. S12387 (daily ed. Sept. 11, 1979). No action has been taken in the House.

[10 ELR 20530]

MacKINNON, Circuit Judge:

In concurring with Judge Tamm's opinion I am impressed with the fact that to allow the Secretary's overly comprehensive regulations to stand would as a practical matter operate to stifle the activity of all the states in their handling of local problems. The regulations in effect smother practically all local initiative. That was not the intent of Congress. Thus, the Congressional intent is violated in an unusual way.

I am also unconvinced that the time restraints under which the Act must be implemented, presents a valid argument for construing the Act to vest an all encompassing power in the Secretary. Congress may well have acted unreasonably and in an impractical manner in fixing the date for original compliance. This has happened on other occasions. Such mistaken time estimates, however, are not a valid or logical reason for construing an Act, against its terms, just so a quick, albeit shoddy, compliance with legislative intent, can be effectuated.

HAROLD H. GREENE, District Judge, dissenting: Like the majority, I believe that the language of the Surface Mining Act and its legislative history are not without ambiguity,¹ and for that reason I agree with much of the court's analysis. However, in my view the broad purposes of the statute would most faithfully be effectuated by a construction which upholds the authority of the Secretary to issue minimum information regulations.

The Surface Mining Act was enacted in the Fall of 1977 for the primary purpose of establishing a "nationwide program to protect society and the environment from the adverse effects of coal mining operations." Section 102(a). The Congress was "mindful of past failures on the state level" (H.R. Rep. 95-281, 95th Cong., 1st Sess., p. 85) and the fact that, "[w]hile a number of States do have surface mining reclamation programs, regulation of surface coal mining is not uniform, and in many instances is inadequate" or not fully enforced. S. Rep. No. 95-128, 95th Cong., 1st Sess., pp. 49-51.

In order to deal with this problem a "national system" was being created, to include administrative, environmental, and enforcement standards for regulatory programs to be administered by the states. House Report p. 57. Such a system was deemed essential if the environmental purposes of the law were to be achieved instead of being thwarted through economic competition among the states by means of the adoption of low environmental standards. Section 101(g); Union Carbide Corp. v. Andrus, __ F. Supp. __, 13 ERC 1481, 1492-96 (S.D. W.Va. 1979). The legislators expected "that Federal regulations promulgated under the Act will fully implement the environmental performance standards." House Report, p. 85.

Members of the Senate who were opposed to the bill which became the Surface Mining Act expressed concern about the concept of federal regulatory oversight over state programs. They argued² that

[a]s the bill is written a state will either have to choose to have a 'Federal' program regulating all surface mining within a state, or a 'State' program which is drafted pursuant to the rules and regulations promulgated by the Secretary of Interior. State participation in this regulatory process is illusory since the state would not have the flexibility to influence the substance.

Some of the members of the Senate Committee on Energy and Natural Resources proposed a third option: adoption by the states of the reclamation standards, the "core provisions" of the bill, subject to federal monitoring of the effectiveness of state enforcement. An amendment embodying that option did not pass,³ and it is not unreasonable to interpret this congressional rejection of the minority proposals as some evidence that the Congress supported the concept of state programs conforming to rules and regulations issued by the Department of the Interior. The construction adopted by the court seems to me to be inconsistent with the overall policy approach embodied in the legislation and to go a considerable distance toward adopting the alternative Congress rejected.

Two types of statutory provisions enable the Department of the Interior to carry out these general purposes — the Secretary's general rulemaking powers and the more specific authority granted to him in Title V of the Act.

Section 201(c)(2) grants to the Secretary rulemaking authority of a familiar kind. That provision authorizes him to "publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act."

[10 ELR 20531]

The Supreme Court and this court have consistently held that similar grants of general rulemaking authority sustain the validity of detailed regulations which are reasonably related to the purposes of the enabling legislation. Thus, in E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 132 (1977), the Court upheld the authority of the Environmental Protection Agency to issue industry-wide regulations under the Federal Water Pollution Act, 33 U.S.C. § 1251 et seq., in significant part because the statute granted to the agency the general authority to "make such regulations as are necessary to carry out its functions" and charged it with "the duty of administering the Act."⁴ See also, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369 (1973); FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 796 (1978); Kyle v. ICC, U.S.App.D.C. , 609 F.2d 540, 543 (1979).

This principle is especially relevant where, as here, a remedial statute is involved which must, if possible, be given a construction which will effectuate its purposes,⁵ and where, again as here, the law involves an agency charged with national responsibilities affecting an entire industry.⁶

These general rules are not vitiated by the circumstance that, following the valid adoption of the regulatory program, implementation is left to the states. Certainly, the Secretary would have no power to promulgate regulations which would interfere with state administration at the implementation stage. But during the preapproval period, in which the Secretary clearly was intended to play a significant role, his general rulemaking authority supports reguatory implementation just as it normally does in federal regulatory situations. See Udall v. Tallman, 380 U.S. 1, 16 (1965).

III

The heart of the Surface Mining Act is Title V. The principal means chosen by Congress for achieving the statute's environmental purposes is a permit system established by section 506. That system, in turn, depends for its vitality upon adequate information in the permit applications (sections 507 and 508) which must be submitted in a manner satisfactory to the states. But the states are by no means the exclusive guardians of this process.

Section 503 requires any state desirous of undertaking its own regulatory program to submit to the Secretary a plan demonstrating that it has the capability of carrying out the provisions and meeting the purposes of chapter V. The state proves such a capability by meeting a variety of substantive standards and by adopting "rules and regulations consistent with regulations issued by the Secretary pursuant to this Act." Section 503(a)(7). If the Secretary does not approve a state's program under this standard, the state may resubmit its program within sixty days, but should it ultimately fail to submit a valid program, an exclusively federal program is adopted and implemented.

The Secretary's broad mandate to pass upon and to approve or disapprove state programs supports, without more, an inference that he also possesses the power to prescribe, through regulation, what kind of programs will meet his approval.But the statute does not leave the existence of this authority solely to inference. Section 501(b) explicity and without any exception⁷ grants to the Secretary the power to establish "procedures and requirements for preparation, submission, and approval of State programs."

By their very terms, the regulations here at issue establish "requirements for preparation . . . of State programs" as provided for in section 501(b). That language seems to me to contradict the majority's reading of the statute which apparently (see note 9 infra) confines the Secretary's function to the limited task of guaranteeing literal consistency with the Act's performance standards.

State regulations which are inconsistent with the very terms of the statute would be invalid in any event, with or without federal regulatory intervention. By restricting the Secretary to guaranteeing textual compliance with the statute, the court's decision thus effectively eliminates the federal authorities from any significant role in the administration of the permit application program. Such a narrow construction is quite unusual,⁸ and there is no reason in the statutory purposes or the language of the Act so to restrict the Department of the Interior in this instance.

The Secretary's approach — to adopt regulations and thereby to advise the states in advance what programs he regards as meeting the statutory standard — may not be⁹ conceptually that different from methodology acceptable to the court and to appellants. Appellants have conceded the Secretary's power to disapprove state programs even in the permit application area and to return them for revision until they are satisfactory. Similarly, the court suggests that the Secretary has the authority to refuse to approve a state's particular program if it appears inadequate to obtain the information required by sections 507 and 508 and that he may issue interpretive [10 ELR 20532] rulings. At the same time, the court rejects the regulations the Secretary has issued here. I believe that, especially in view of the time constraints under which the Act must be implemented,¹⁰ the Secretary's approach constitutes a reasonable, indeed the only reasonable means of practical implementation.¹¹

To have proceeded by a method of receiving state plans and programs, returning them to the states for redrafting in conformity with — presumably inarticulated — standards, then passing upon them again and again until they were found to be satisfactory would have been an invitation either to chaos or to a paralysis of the regulatory process. Instead, the Secretary's regulations advise the states what state programs would be acceptable, and they further elaborate that in promulgating these programs the states will be free to make use of the "state window" provisions of the regulations¹² to take account of local conditions. I believe that this method of proceeding was logical, fully consistent with the statute, and lawful. National Petroleum Refiners Association v. FTC, supra, 482 F.2d at 683-84; Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973).¹³

Both appellants and the court rely to an extent on legislative developments occurring in 1979, two years after enactment of the Surface Mining Act. In this regard, appellants suggest that the interpretation they propose is supported by passage by the Senate of a bill (S. 1403) which would delete the requirement for conformity of state programs to regulations issued by the Secretary of the Interior.¹⁴

It is, of course, well established that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one. United States v. Philadelphia National Bank, 374 U.S. 321, 348-49 (1963). That hazard is compounded where, as here, the views are those of only one house of Congress. Allyn v. United States, 461 F.2d 810, 811 (Ct. Cl. 1972).¹⁵ Beyond that, passage by the Senate of S. 1403 is at least as consistent with the proposition that that body assumes existing authority in the Secretary to adopt the regulations here at issue as it is with the inference proposed by appellants.

Senator Jackson, chairman of the Senate Committee on Energy and Natural Resources and six of his colleagues have stated¹⁶ that they regard the amendment as "a substantial undermining of the intent of Congress in passing the Surface Mining Act." In their opinion, the rules and regulations issued by the Secretary constitute a proper interpretation of the congressional intent, and they regard the elimination of these regulations from the review process as a subversion of the orderly procedure for approval or disapproval of state program submissions.¹⁷ Congressman Udall, principal sponsor of the House bill which became the Surface Mining Act, likewise expressed his opposition to an amendment similar to S. 1403, and it may be that his opposition was responsible for lack of action in the House of Representatives.

The short of it is that the Congress has enacted no new legislation and, having been unsuccessful in the legislative arena, the appellants are attempting to achieve the objective of defeating the basic scheme of the Act through litigation. In my opinion they have not demonstrated that the district court erred in finding that the statute authorized the issuance of the Secretary's regulations.

The court relies on last year's legislative development only to the extent of indicating that, should its construction of the law be in error, the Congress could effect any necessary correction. That factual premise may well be unsound since the House and Senate appear to be in deadlock. Beyond that, I do not believe that we would be justified in resting our decision in a case or controversy before us, either in whole or in part, upon [10 ELR 20533] the expectation that Congress might rectify any error. This is so particularly where, as in this instance, the Congress could, with equal ease or difficulty, overrule whatever construction we adopt. Thus the possibility of congressional action does not assist us, one way or the other, in resolving the issues.

For the reasons stated, I believe that the Secretary of the Interior acted within the scope of his authority and that the district court correctly interpreted the law, and I respectfully dissent.

1. Nevertheless, again like the majority, I think they are of some assistance to us.

2. Senate Report, pp. 125-126 (minority views).

3. Id.

4. The general statutory provisions have parallel with respect to Interior's information-gathering function those which in du Pont were held to be sufficient to sustain EPA regulations relating to the even more vital substantive performance standards area. Reliance upon section 201(c)(2) of the Surface Mining Act as authority for comprehensive regulations would not appear to involve greater elements of circularity than reliance upon similar statutory provisions in du Pont and other cases to sustain other regulatory programs.

5. United States v. Bacto-Unidisk, 394 U.S. 784, 799 (1969); United States v. Republic Steel Corp., 362 U.S. 482, 491 (1960); Permian Basin Area Rate Cases, 390 U.S. 747, 780 (1968); National Petroleum Refiners Association v. FTC, 157 U.S. App. D.C. 83, 482 F.2d 672, 689-91 (1973), cert. denied, 415 U.S. 951 (1974).

6. E. I. du Pont de Nemours, supra, 430 U.S. at 132-35; Thorpe v. Housing Authority of Durham, 393 U.S. 277-81 (1969); Permian Basin Area Rate Cases, supra, 390 U.S. at 776; National Petroleum Refiners Association v. FTC, supra, 482 F.2d at 688-89.

7. Nothing in the language of this provision or its legislative history limits the Secretary to the imposition of requirements for processing state programs or to areas other than those involved here. See majority opinion, pp. 7-8.

8. United Airlines v. CAB, 186 U.S. App. D.C. 401, 569 F.2d 640, 648 (1977); Mourning v. Family Publications Service, Inc., supra, 411 U.S. at 472-74.

9. The court does not make it entirely clear whether, in exercising these responsibilities, the Secretary is restricted to a comparison of the state regulations with the statutory language or whether he may place a gloss upon that language by issuing interpretive regulations of his own.

10. Under section 503(a) the state programs were to have been submitted to the Secretary by February 3, 1979. The Secretary, acting pursuant to section 504(a), extended that deadline to August 3, 1979, and the district court granged a further extension to March 3, 1980. Two state programs have been approved (Texas, 45 Fed. Reg. 12998, February 27, 1980; Montana, 45 Fed. Reg. 21560, April 1, 1980); and two others, after an initial partial disapproval (Mississippi, 45 Fed. Reg. 19268, March 25, 1980; Wyoming, 45 Fed. Reg. 20930, March 31, 1980) are being resubmitted. Twenty other state program submissions are currently under review by the Secretary. It is difficult to visualize how these states and the federal authorities are to proceed hereafter to implement the Act under the court's directive.

11. The law favors those constructions of agency rule-making powers which render the statutory purposes easiest to effect. United States v. Chrysler Corp., __ U.S.App.D.C. __, 591 F.2d 958, 961 (1979); American Horse Protection Association v. Department of the Interior, 179 U.S. App. D.C. 246, 551 F.2d 432, 439-40 (1977).

12. Deviations from the regulations are not only allowed in theory through "state window" provisions in the regulations, 30 C.F.R. § 731.13, but they have been permitted in practice; e.g., with respect to Montana. The district court still has under consideration the issue of the substantive validity of the Secretary's minimum standards, and those which it ultimately finds to be inconsistent with the requisites of the statute will presumably be struck down. Thus, any concern regarding the imposition of unduly rigid standards leaving too little scope for state experimentation in violation of the statute seems to be premature.

13. The majority assumes (p. 15, n.10) that a contrary conclusion may raise a Tenth Amendment problem. If the Congress has the authority under the Commerce Clause to prohibit roadside restaurants from discriminating (Katzenbach v. McClung, 379 U.S. 294 (1964)) and to regulate the production of wheat which a farmer will consume himself (Wickard v. Filburn, 317 U.S. 111 (1942)), it surely has power, notwithstanding the Tenth Amendment, to regulate surface coal mining with its enormous nationwide impact.

14. The bill would delete portions of sections 503(a)(7) and 701(25) upon which the Secretary's exercise of authority is based at least in part, and the Committee made clear that the purpose of the amendment was to eliminate the requirement that state regulations be consistent with the regulations issued by the Secretary. S. Rep. No. 96-271, 96th Cong., 1st Sess. 4 (1979).

15. The House of Representatives has not passed any legislation comparable to S. 1403.

16. S. Rep. No. 96-271, pp. 32-33 (minority views).

17. The minority report lists a large number of subjects which under the amendment would be separately interpreted by state governments, with a negative effect on a minimal level of comparability between state programs and the law. In the view of those subscribing to the report, "the very likely outcome of such a procedure will be a considerable increase in litigation [and] ultimately a new set of rules and regulations will be written by the courts." S. Rep. No. 96-271, pp. 33-34.