Sierra Club v. Watt

No. 81-3157 (D.D.C. September 17, 1982)

The court upholds a revision to a Surface Mining Control and Reclamation Act (SMCRA) regulation governing approval of state regulatory programs changing the definition of "consistent with" from "no less stringent than" to "no less effective than" the federal regulations. Initially, the court notes that since the revision does not apply to enforcement and procedural components of state programs it effectively moots plaintiff's claim that the amendment violates §§ 518 and 521 of SMCRA, which state that in these areas state programs must virtually copy the federal program.

Applying the arbitrary and capricious standard of review and noting that this standard requires deference to the agency, the court rules that the revised regulation is in harmony with the statute.Since the agency has a reasoned basis for the change, the new regulation is not arbitrary or irrational. The effectiveness test is in harmony with the requirement that the state programs be "consistent with" federal regulations because it fosters the Act's goal of a nationwide surface mining control program developed and implemented with state assistance.The court rejects plaintiff's argument that the legislative history requires the agency to use the same "no less stringent than" test prescribed for determining whether state surface mining statutes are "in accordance with" the federal statute in determining whether state programs also satisfy the benchmark of the federal regulations. The court concludes by noting that the amendment is the sort of fine-tuning that must be expected as an agency grapples with the implementation of a complex and imprecise statute.

Counsel for Plaintiff
Ronald J. Wilson
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Suite 600, Washington DC 20005
(202) 347-1770

L. Thomas Galloway
Center for Law & Social Policy, 1751 N St. NW, Washington DC 20036
(202) 833-9084

Counsel for Defendants
Alfred T. Chiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2306

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

John A. Macleod
Crowell & Moring
1100 Connecticut Ave. NW, Washington DC 20036
(202) 452-5800

[13 ELR 20470]

Pratt, J.:

This is an action brought by plaintiff Sierra Club and three other public interest groups, challenging certain administrative action taken by the Secretary of the Interior. Specifically, plaintiffs challenge the recent promulgation of a regulation which establishes a revised standard for federal approval of state programs designed to regulate surface coal mining operations pursuant to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328. Plaintiffs claim that the revision which alters the test of consistency of a state program with the federal regulations, is unlawful. For reasons set forth more fully below, the parties' cross-motions for summary judgment are resolved in favor of defendants.¹

I. Background

A. The Statute

The Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201, et seq. (SMCRA) is a comprehensive statute providing extensive authority for the regulation of surface mining and related reclamation activities by the Secretary of the Interior and the various states. Although the statute recognizes that the primary responsibility for "developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations . . . should rest with the States," 30 U.S.C. § 1201(f), the statute nevertheless provides for initial preemptive federal regulation. 30 U.S.C. § 1252(e). For a state to achieve exclusive jurisdiction or "primacy" over surface mining regulations, section 503(a), 30 U.S.C. § 1253(a) requires that a state submit a program which contains, inter alia, a state law providing for surface mining regulation "in accordance with" the act, and state rules and regulations "consistent with" regulations issued by the Secretary under SMCRA. Id., at § 1253(a)(1), (7). Once the program is approved by the Secretary, the State becomes the primary regulatory authority, enforcing its own program requirements, with the Secretary acting in an oversight role.

B. The Regulations

As indicated above, SMCRA requires the Secretary to promulgate regulations implementing a permanent regulatory program. 30 U.S.C. § 1251(b). These regulations, which include procedures and requirements for preparation, submission and approval [13 ELR 20471] of permanent state programs and for implementation of federal programs, were in fact promulgated and published on March 13, 1979. See 44 Fed. Reg. 15312, et seq. Included therein was a provision defining the statutory terms, "in accordance with" and "consistent with," referenced above. These terms were given the same meaning and the same definition extended to comparison of state plans with both the Secretary's regulations and with SMCRA itself. Thus, as originally promulgated, 20 C.F.R. § 703.5 provided that

As used in this subchapter unless otherwise indicated "consistent with" and "in accordance with" mean:

(a) With regard to the Act, the State laws and regulations are no less stringent than, meet the minimum requirements of and include all applicable provisions of the Act.

(b) With regard to the Secretary's regulations, the State laws and regulations are no less stringent than and meet the applicable provisions of the regulations of this chapter. (emphasis supplied).

A change in this standard of approval was proposed in April, 1981. See 46 Fed. Reg. 22399 (April 17, 1981). This change adopted in late October, 1981 changed paragraph (b) of the above quoted definition, which concerns the compliance of a state program with the Secretary's regulations. Although the former definition is retained for determining the compliance of state programs with the requirements of SMCRA, 30 C.F.R. § 730.5(b) was revised as follows:

(b) With regard to the Secretary's regulations, the State laws and regulations are no less effective than the Secretary's regulations in meeting the requirements of the Act. (emphasis supplied).

46 Fed. Reg. 53376, 53384 (April 17, 1981).

II. Discussion

A. The Issue

The dispute in this case, simply stated, is whether the Secretary may validly change the definition of "consistent with," as used with respect to the comparison of a submitted state program with the Secretary's regulations, from "no less stringent than and meet the applicable provisions of [the regulations]" to "no less effective than" those regulations in meeting the requirements of SMCRA. It is emphasized that his revised definition has no impact on the comparison of state programs directly with the requirements of the Act, but is limited to comparison of a state program with the Secretary's regulations. It is plaintiff's claim, however, that the application of such a bifurcated standard of comparison is inconsistent with SMCRA. Stated another way, the issue is whether state programs with components "no less effective than" the Secretary's regulations are to be approved as being in compliance.²

B. The Standard of Review

This Court's standard of review of the Secretary's rulemaking action is clearly established by section 526(a)(1), 30 U.S.C. § 1276(a)(1), which provides in relevant part, that this regulation "shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with the law."

Plaintiffs suggest that this is a case involving a strictly legal issue, not implicating agency fact finding or areas of special expertise. Therefore, they contend that a close scrutiny of the agency's action is appropriate, instead of the deference traditionally accorded to administrative action. As noted by Judge Flannery of this Court, however, the above-quoted standard "is highly deferential and generally presumes the validity of the agency action." In Re Permanent Surface Mining Regulation Litigation, 14 Evn't. Rep. Cas. 1083, 1084 [10 ELR 20526] (D.D.C. 1980).

C. Validity of the October, 1981 Revision

At the threshold, it must be recognized that the Secretary is empowered by section 201(c)(2) of SMCRA, 30 U.S.C. § 1211(c)(2), to "publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of [the Act]." And, as noted by Judge Flannery in In Re Permanent Surface Mining Litigation, supra at 1086, "[a]n agency's regulations may cover items not specifically delineated in a statute so long as the regulations conform to an act's purposes and policies." We conclude, as did Judge Flannery, that SMCRA authorizes the Secretary to prescribe such definitions, so long as such action is "consistent with the act and rational in its character." Id.

The Secretary has advanced reasons for the regulatory change at issue here, stemming from perceived difficulties in administering the previous rule. The former provision is claimed to have been difficult to understand and unnecessarily rigid. The October, 1981 revision was designed to introduce sufficient flexibility to respond to the particular needs of the individual states, while retaining the federal regulations as the "benchmark for evaluating state proposals." 46 Fed. Reg. 53376-77 (Oct. 28, 1981).³

This showing, although demonstrating that the proposal is not without a foundation and thus not clearly arbitrary or irrational, only points to the ultimate question: whether the October, 1981 revision is consistent with the statute.

It is conceded by all that the Act and the accompanying regulations function as the minimum requirements for the regulation of surface mining operations.⁴ Although section 503(a) of SMCRA, 30 U.S.C. § 1276(a), requires that state programs must be "in accordance with" that Act and "consistent with" the regulations in order to secure approval by the Secretary, the statute does not conclusively define those terms or expressly prohibit separate or varying definitions. It is only required that those terms, whose clarification is reserved to the agency, be defined in harmony with the statute, and with an eye to ensuring that the statutory purposes are satisfied. As defendant Secretary correctly argues, if an alternative component of a state program is equal in effectiveness to the federal regulations in meeting the Act's requirement, then it follows as a matter of logic that those federal regulations continue to serve as minimum standards for comparison with the state program.

We think that a state program with components "no less effective than" the federal regulations is consistent with those regulations, as the latter-quoted term is used in section 503(a)(7). Moreover, the "effectiveness" test is in harmony with the purposes of the statute which was designed not only to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operatings," but also to "assist the States in developing and implementing [such] a program."⁵ 30 U.S.C. § 1202(a), (g),

Where, as here, the challenged action is not repugnant to the language of the statute or its underlying purposes, "a clearly expressed legislative intention to the contrary must be shown"⁶ to [13 ELR 20472] sustain that challenge. Such contrary intent has not been shown.

Plaintiffs place substantial reliance on passages in the legislative history to sustain their contention that the same standard of comparison for a state program must apply, whether the state program is compared to the Act, or to the implementing regulations. Those passages do not clearly demonstrate that Congress intended that exactly the same standard of comparison apply however. On the contrary, and this is not surprising, the legislative history shows, if anything, that Congress did not specifically consider the problem we face. Instead, Congress used the terms "in accord with," "in accordance" and "consistent with" interchangeably intending that the emerging state programs would at least be in harmony or compatible with the requirements of the Act and the federal regulations issued thereunder.

Having made a careful examination of the Secretary's action, we conclude that the October, 1981 revision to 30 C.F.R. § 703.5 is amply supported in law and must be upheld. Our conclusion is reinforced not only by the presumption of validity and concomitant deference accorded to agency action in general, but also by the fundamental maxim that the interpretation of a statute by the agency charged with administering it should be accepted unless there are compelling indications that it is wrong. Train v. NRDC, 421 U.S. 60, 86-87 [5 ELR 20264] (1975). Likewise, in this case, where a "complex regulatory statute emerge[d] from a process of difficult legislative gestation,"⁷ it may reasonably be expected that the agency, after accumulating experience in administering the Act, would seek to "fine tune" its initial attempt to implement the statute. The slight change in language is such an effort and in no way undermines the basic purpose of the legislation or compromises the standards mandated by the Act and regulations.

Conclusion

The standard as it now stands requires an examination of each state regulatory provision to determine whether such provision is "no less effective" than the applicable federal regulations. States must still demonstrate that their submitted programs are "in accordance with" the Act and are "no less stringent." Program components must be "no less effective" than those regulations in meeting the requirements of the Act. The role of the federal regulations as minimum requirements is therefore preserved. Also, it is of importance to note that the Secretary's decision to approve a state program containing components claimed to be as effective as the federal regulations may be subjected to judicial review. 30 U.S.C. § 1276. Measured against the language of SMCRA, and the underlying purposes and legislative history of that act, we conclude that the Secretary's revision was within the "range of permissible choices." Plaintiffs have failed to show that the standard is arbitrary, capricious or otherwise contrary to law, as required by 30 U.S.C. § 1276(a)(1).Their motion for summary judgment is denied and defendants' motions for summary judgment are granted.

An appropriate order has been entered this day.

Order

Upon consideration of the cross-motions for summary judgment, the various memoranda of all the parties, and the entire record in this case, it is by the Court this 18th day of September, 1982,

ORDERED that plaintiffs' motion for summary judgment is hereby denied, and it is

FURTHER ORDERED that defendants' motions for summary judgment are hereby granted and this action is dismissed with prejudice, each party to bear its own costs, disbursements and fees.

1. In so doing, we are not oblivious to the issue of standing and the importance of concrete injury. As intervenor Peabody Coal Company points out, while plaintiffs may have the capacity to invoke Article III jurisdiction, the complained of change in the regulation has caused no injury to plaintiffs, absent an instance of concrete application. Memorandum of Peabody, pp. 3-6.

2. Plaintiffs advance a second attack upon the October, 1981 revision to the extent it can be read to apply to penalty and enforcement provisions of state programs. Under SMCRA, such programs must contain penalties and enforcement sanctions "no less stringent than those set forth in [sections 518, 521, 30 U.S.C. §§ 1268, 1271] and shall contain the same or similar procedural requirements relating thereto." 30 U.S.C. §§ 1368(i), 1271(d).

Counsel for the Secretary concedes that the preamble to the October, 1981 revision is not a "model of clarity," and represents as follows: "plaintiffs have misinterpreted the Secretary's regulation: the 'no less effective than' test promulgated on October 28, 1981 does not apply to the enforcement or procedural aspects of proposed state programs." Crossmotion of the Secretary of the Interior, et al., for summary judgment at 9, f.n. In our view, this moots the dispute on this fact of the litigation.

3. The October, 1981 revision to 30 C.F.R. § 730.5(b) displaced a provision in the original version of the permanent regulations known as the "state window." (formerly found at 30 C.F.R. § 731.13). This original attempt at flexibility "allowed state variations on or alternatives to the federal regulations, though not the Act, to fit specific local condition." Crossmotion of Secretary of Interior, et al. for summary judgment at 3. Use of the "state window" was limited to situations where an alternative was necessary because of local conditions, and where the alternative would be "as stringent as" the federal regulation. The October, 1981 revision relaxed these requirements, requiring in essence only a showing of "equal effectiveness." The "state window" was therefore eliminated. See 46 Fed. Reg. 53376 (Oct. 28, 1981).

4. See 46 Fed. Reg. 53376 (Oct. 28, 1981). In Re Permanent Surface Mining Regulation Litigation, supra, at 1086. CONFERENCE REPORT, H.R. REP. No. 95-793, 95th Cong., 1st Sess. 102 (1977).

5. We note that inherent in the intent of Congress that primary responsibility for regulation of surface mining should rest with the states, is an implicit recognition that a measure of flexibility would be necessary to that end.

6. Consumer Product Safety Commission v. GTE Sylvania, Inc., 427 U.S. 102, 108 (1980).

7. In Re Permanent Surface Mining Regulation Litigation (Peabody Coal Company), 653 F.2d 514, 522 [11 ELR 20941] (D.C. Cir. 1981), cert. denied, 102 S. Ct. 106 (1981).