Appendix — Peabody Coal Co. v. Watt

Office. Supreme Court, U.S.

kilLED

Dae

ALEXKAND. ww L. STEVAS,

IN THE an

Supreme Court of the United States

OCTOBER TERM, 1980

PEABODY COAL COMPANY,

¥ Petitioner,

JAMES A, WATT, SECRETARY OF THE INTERIOR

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

WARNER W. GARDNER*

I, MICHAEL GREENBERGER

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C, 20036

(202) 828-2000

Davip 8S. HEMENWAY

301 North Memorial Drive

St. Louis, Missouri 63102

(814) 842-8400

Attorneys for Petitioner

Peabody Coal Company

*Counsel of Record

Of Counsel:

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C, 20036

May 6, 1981

WILGON - Eres PRINTING Co,, INC, - 789-0096 - WASHINGTON, D.C, 20001

APPENDIX TABLE OF CONTENTS

. In Re: Permanent Surface Mining Regulation Liti-

gation, No. 80-1308 (D.C, Cir., April 1, 1981) (en

RESETS ASRS aa ene ONE WOLD APNE Fete

. Order, In Re: Permanent Surface Mining Regula-

tion Litigation, No. 80-1308 (D.C. Cir., August 25,

1980) (granting rehearing en banc and staying

judgments and opinions entered on July 10, 1980)..

. In Re Permanent Surface Mining Regulation Liti-

gation, No. 80-1808 (D.C. Cir., July 10, 1980)

SRT OS MM BRR

. In Re: Permanent Surface Mining Regulation Liti-

gation, No. 79-1144 (D.D.C., February 26, 1980)

(denying petitioner’s motion for partial summary

ch SS ER RE Le Reape Ros ero tne

. In Re Surface Mining Regulation Litigation, No.

80-1308 (D.C. Cir., January 18, 1980) (affirming

denial of preliminary injunction) ...............00000000......

. In Re: Permanent Surface Mining Regulation Liti-

gation, No. 79-1144 (D.D.C., August 21, 1979)

(denying petitioner’s motion for cuuseease: in-

IIT cu oihsshts carla sd cidensraredaendndetaictagagetamitabetaeancdoaaiichol

. Excerpts from Surface Mining Control and Recla-

mation Act of 1977, 91 Stat. 445, 12 U.S.C. 1201,

(EEE SER SAAR EAR Soo RAED

. Excerpts from Title 30, Code of Federal Regula-

. In Re: Permanent Surface Mining Regulation Liti-

gation, No. 80-1308 (D.C. Cir., April 1, 1981)

I oa” seniiensdbunianteesuiats

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 80-1308

IN RE: PERMANENT SURFACE MINING

REGULATION LITIGATION

PEABODY COAL COMPANY,

Appellant

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 79-1144)

Argued en bane October 23, 1980

Decided April 1, 1981

Before: McGowan, Chief Judge, and WRIGHT, TAMM,

ROBINSON, MACKINNON, ROBB, WILKEY, WALD, MIKvA,

EDWARDS and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge MIKVA.

Dissenting opinion, in which Circuit Judges MACKIN-

NON, Ross, and WILKEY join, filed by Circuit Judge

TAMM.

Dissenting opinion filed by Circuit Judge MACKINNON.

MIKVA, Circuit Judge: This case presents a narrow

question concerning the relative authority of the Secre-

2a

tary of the Interior and the states in the administra-

tion of the Surface Mining Control and Reclamation Act

of 1977 (Surface Mining Act, or Act), 30 U.S.C. §§ 1201-

1328 (Supp. I 1977). The United States District Court

for the District of Columbia held that the Act gives the

Secretary rulemaking power to prescribe minimum in-

formation requirements for permit applications sub-

mitted to state regulatory agencies. We conclude that

the Act does give the Secretary this authority, and ac-

cordingly affirm the judgment of the district court.

I. THE ISSUE PRESENTED

The Surface Mining Act embodies Congress’ recogni-

tion that “the expansion of coal mining to meet the Na-

tion’s energy needs makes even more urgent the estab-

lishment 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.” Act § 101

(d).' After an initial period of direct regulation by the

Secretary, the Act contemplates a continuing partnership

between the states and the federal government, with the

Secretary providing oversight, advice, and back-up au-

thority, and the states bearing the major responsibility

for implementation of the Act. The crucial step in ac-

complishing this transition is a state’s submission of its

proposed regulatory program to the Secretary for his

approval. The Secretary may only approve the state

1 Sections of the Act, 30 U.S.C. §§ 1201-1328 (Supp. I 1977),

are cited in this opinion by their designation in the Statutes at

Large. The parallel United States Code citations for title V of the

Act, §§ 501-529, are 30 U.S.C. §§$ 1251-1279. Other sections to

which frequent reference is made are:

Section 101—30 U.S.C. § 1201

Section 102—30 U.S.C. § 1202

Section 201—30 U.S.C. § 1211

Section 405—30 U.S.C. § 1235.

program if he finds it capable of carrying out the exact-

ing provisions of the Act, and consistent with his own

regulations. Act § 503(a).

Whether regulation is under federal authority or an

approved state program, persons wishing to engage in

surface mining must obtain a permit from the regulatory

authority. Act §506(a). Permits may not be granted

unless the applicant successfully carries the burden of

establishing full compliance with the applicable program,

and the applicant must submit detailed information from

which the regulatory authority and interested citizens

may judge compliance. Act §§510(b), 507(b). Section

507(b) lists a large number of items which, “among

other things,” a permit application must contain.

The Secretary’s regulations for the permanent regula-

tory program, issued in March 1979, includes rules con-

cerning the content of acceptable state program sub-

missions. See 44 Fed. Reg. 14,902, 15,312 (1979) (codi-

fied at 30 C.F.R. pts. 700-890 (1979)). These regula-

tions specify minimum information that a state must

require in a permit application, information which ex-

tends beyond the explicit information requirements de-

tailed in the Act itself. See 30 C.F.R. pts. 778-784

(1979).

Various interested persons filed actions in the United

States District Court for the District of Columbia, chal-

lenging the permanent regulations.* Appellant attacked

the Secretary’s information requirements in sweeping

terms, denying that the Secretary possessed any power to

promulgate regulations on that subject. Appellant also

criticized numerous individual regulations as, for various

2The Act specifically provides that “[a]ny action by the Secre-

tary promulgating national rules or regulations including standards

pursuant to sections 501, 515, 516, and 523 shall be subject to

judicial review in the United States District Court for the District

of Columbia Circuit [sic].” Act § 526(a) (1).

4a

reasons, beyond the scope of the Secretary’s authority.

In February 1980, the district court reached a decision

on some of the many issues presented in the cases con-

solidated before it. The court concluded that “the struc-

ture of the Act, the general grants of rulemaking au-

thority, and section 501(b) support the Secretary’s

power” to issue regulations requiring the states to de-

mand more information than the statute itself requires.

In re Permanent Surface Mining Regulation Litigation,

Civ. No. 79-1144, mem. op. at 31 (D.D.C. Feb. 26, 1980).

The district court entered a final judgment in accordance

with rule 54(b) of the Federal Rules of Civil Procedure

on that portion of its decision dealing with the Secre-

tary’s rulemaking power so that Peabody Coal Company

could appeal that determination without delay. On July

10, 1980, a panel of this court reversed the judgment

of the district court. Upon the Secretary’s petition, we

granted rehearing en banc and vacated the panel

decision.

An illustration or two will suffice to demonstrate the

absolute character of appellant’s claim. Section 522(e)

(5) of the Act forbids new surface coal mining opera-

tions “within three hundred feet from any occupied dwel-

ling, unless waived by the owner thereof.” The explicit

information requirements of the Act, however, do not

mandate that a permit application include any informa-

tion from which it can be ascertained whether such

owners have consented to the proposed operations. The

Secretary’s regulations require the operator to submit

evidence of such consent with the permit application.

80 C.F.R. § 778.16(c) (1979). Congress also directed

the Secretary to promulgate “regulations directed toward

the surface effects of underground coal mining opera-

tions,” Act §516(a), and to make such modifications in

the requirements of the Act “as are necessary to ac-

commodate the distinct difference between surface and

underground coal mining,” Act §516(d). Understand-

5a

ably, the explicit information provisions of the Act do

not anticipate all of the Secretary’s modifications. See,

e.g., 30 C.F.R. § 784.14(d) (1979). Yet appellant denies

that the Secretary has the power to issue any regulations

requiring permit applications to include information that

may be necessary to ensure compliance with section 522

(e)(5) or the Secretary’s modifications under section

516, unless that information is already demanded ex-

plicitly by the Act. Appellant insists that only the states

have the power to increase the information requirements

of the Act.

Our inquiry is narrow. We are called upon to deter-

mine only whether the Secretary has rulemaking au-

thority to require that permit applicants submit any

items of information beyond those enumerated in the

Act.® The partial summary judgment we review does

not extend to the question whether the regulations ac-

tually promulgated by the Secretary are permissible exer-

cises of that authority. Challenges to individual regula-

tions are being separately adjudicated in the court below,

3 Appellant argues that the Act forbids the Secretary to require

information not included in sections 507 and 508 of the Act. Care-

ful examination of the Act reveals that these sections do not ex-

haust the information that the Act directs permit applicants to

submit. See Act §§510(b) (6) (requiring submission of written

consent of surface owner), 510(c) (applicant must “file with his

permit application” a list of violations of certain related laws),

506(b) (term of permit may not exceed five years unless applicant

demonstrates longer term necessary to obtain financing), 510(b) (4)

(permit for operations in area under study for designation as un-

suitable for surface mining only to be granted if applicant demon-

strates substantial legal and financial commitments made before

January 1, 1977) ; see 30 C.F.R. §§ 778.15 (b), 778.14(c), 778.17(b),

778.16(b) (1979), respectively. We believe it only fair to rechar-

acterize appellant’s argument as one challenging permit informa-

tion requirements beyond those of the Act, generally, so as to re-

lieve appellant of an inadvertently underinclusive argument.

6a

with varying results. Appellant insists both in briefs

and in oral argument to this court that the Secretary

has no power to prescribe information requirements for

permit applications.®

4 For example, on the same day that he upheld the Secretary’s

power to issue regulations on the subject of permit information,

the district judge upheld specific requirements contained in 30

C.F.R. §§ 778.16(a) (identification of areas designated unsuitable

for mining), 779.14(b) (analyses of strata above and immedi-

ately below the coal seam), 784.20 (subsidence control plan)

(1979), and remanded for revision requirements contained in 30

C.F.R. §§ 779.20 & 780.16 (fish and wildlife information), 779.21

& 783.21 (soil survey information for non-prime farmland) (1979).

He also rejected the Secretary’s definition of “mine plan area” in

80 C.F.R. § 701.5 (1979), and suspended the application of all

regulations in 30 C.F.R. pts. 779, 780, 783 & 784 (1979) to the ex-

tent they depend on that definition. In re Permanent Surface

Mining Regulation Litigation, Civ. No. 79-1144 (D.D.C. Feb. 26,

1980).

5 See, e.g., Appellant’s Supplemental Brief on Rehearing En

Banc at 13 (“We urge instead that the Secretary has no power

to issue any regulation implementing the provisions of §§ 507

and 508.”) (emphasis in original). Appellant explicitly acknowl-

edges that it does not contest in this court the substantive validity

of the individual regulations. “Peabody sought relief by prelim-

inary injunction not only because of lack of authority in the Secre-

tary but because of this massive and inflexible detail. It did not

appeal the denial of relief on the latter ground.” ZJ/d. at 11.

Having thus properly identified the scope of the appeal, appellant

nonetheless lapses periodically into attacks on the arrogance of

the Secretary and the massive detail of his regulations, offering

arithmetical demonstrations of the burdens the regulations im-

pose. Appellant nowhere recognizes that the explicit requirements

of sections 507 and 508 themselves are also massive, or estimates

the expense or the quantity of paper that would be consumed if

the Secretary had promulgated the statutory provisions verbatim

as his regulations. At any rate, these allegations merely form

part of the background for this case, and are not arguments

we must address. The only question before us is the existence

of the Secretary’s rulemaking authority, not whether he has

abused it.

Ta

We have, therefore, no occasion to assess the Secre-

tary’s justifications for individual regulations. We neither

approve nor disapprove any regulation, and our decision

today in no way forecloses subsequent timely challenges

to those regulations, either here or in the court below.

II. THE ROLES OF THE STATES AND THE SECRETARY IN

ADMINISTERING THE SURFACE MINING ACT

Congress chose a special kind of regulatory structure

for the Surface Mining Act, in which the federal gov-

ernment shares administrative responsibility with the

states. Rather than reposing all decisionmaking power

with the Secretary of the Interior, Congress afforded the

states an opportunity to propose regulatory programs

of their own, conforming to the requirements of the Act

and to regulations promulgated by the Secretary. Under

® Section 503 (a) of the Act provides, in part:

Each State in which there are or may be conducted surface

coal mining operations on non-Federal lands, and which wishes

to assume exclusive jurisdiction over the regulation of surface

coal mining and reclamation operations, . . . shall submit to

the Secretary, by the end of the eighteenth-month period begin-

ning on the date of enactment of this Act, a State program

which demonstrates that such State has the capability of car-

rying out the provisions of this Act and meeting its purposes

through—

(1) a State law which provides for the regulation of surface

coal mining and reclamation operations in accordance with

the requirements of this Act;

(4) a State law which provides for the effective imple-

mentatio[n], maintenance, and enforcement of a permit sys-

tem, meeting the requirements of this title for the regula-

tio[n] of surface coal mining and reclamation operations for

coal on lands within the State;

(7) rules and regulations consistent with regulations issued

by the Secretary pursuant to this Act.

a state program, the state makes decisions applying the

national requirements of the Act to the particular local

conditions of the state. The Secretary is initially to

decide whether the proposed state program is capable

of carrying out the provisions of the Act, but is not

directly involved in local decisionmaking after the pro-

gram has been approved.

The essence of appellants’ arguments against the Sec-

retary’s claimed rulemaking power is that it does violence

to the special allocation of decisionmaking power effected

by the statute’s structure. Because the state has the

“primary governmental responsibility” under an approved

state program, Act §101(f), appellant urges that the

Secretary has no power to decide what information the

state should have before it makes its decisions.

The Secretary responds that this argument exaggerates

the independence of the state’s role in administering an

approved program and slights the Secretary’s responsi-

bilities in approving and overseeing such a program.

Appellant, according to the Secretary, would place an

unjustified limitation on his approval role by denying

his right to ask the states to seek more information in

the permit application than explicitly required by the

statute.

A. The State’s Role in Administering an Approved State

Program

In an approved and properly enforced state program,

the state has the primary responsibility for achieving

the purposes of the Act. First, the state is the sole

issuer of permits. In performing this centrally impor-

tant duty, the state regulatory authority decides who

will mine in what areas, how long they may conduct

mining operations, and under what conditions the opera-

tions will take place. See Act §§ 506, 510. It decides

whether a permittee’s techniques for avoiding environ-

9a

mental degradation are sufficient and whether the pro-

posed reclamation plan is acceptable. Act § 510(b). The

state sets the amount of the bond to be posted by the

operator, and inspects the mine to determine compliance.

Act §§ 509, 517. When permit conditions are violated,

the state is charged with imposing appropriate penalties.

Act § 518 (i).

Finally, it is with an approved state law and with state

regulations consistent with the Secretary’s that surface

mine operators must comply. See Act § 503(a), 518(i).

Administrative and judicial appeals of permit decisions

are matters of state jurisdiction in which the Secretary

plays no role. Act § 514."

As long as the state properly enforces its approved

program, it is the exclusive “on the scene” regulatory

authority.* It is, essentially, the entity that applies the

general standards of the Act to the particular geographi-

cal and geological circumstances of the state. Congress

cited the flexibility achieved in this allocation of regula-

tory functions as its reasons for leaving “primary gov-

ernmental responsibility” with the states. Act § 101(f).

B. The Secretary’s Role in Approving and Overseeing a

State Program

Once the state has assumed all these functions, the

Secretary’s role is primarily one of oversight. The stat-

7 The independence of a state administering an approved state

program under the Surface Mining Act may be contrasted with

the continuing role of the Environmental Protection Agency after

a state has assumed responsibility for pollution discharge permits

under the Federal Water Pollution Control Act, 38 U.S.C, §§ 1251-

1876 (1976 & Supp. II 1978). The EPA Administrator retains veto

power over individual permit decisions under that statute, see id.

§ 1842(d).

* Except for federal inspectors, whose intermittent presence on

the scene is required by the Act even when an approved state pro-

gram is in control. Act § 617,

10a

ute requires occasional federal on-site inspections “to

evaluate the administration of approved State programs.”

Act §517(a). Interested persons may also report sus-

pected violations of the Act or of state-imposed permit

conditions to the Secretary, and if he has reason to be-

lieve the allegations he must notify the state regulatory

authority. Act §521(a). If the state fails to take ap-

propriate action, the Secretary is to order a federal in-

spection of the mine site. Jd. Violations that threaten

imminent environmental harm are to be halted by a

cessation order from the Secretary. Act § 521(a) (2).

The Secretary’s oversight function is shared in part

by the public, which is given the right to sue in federal

court, to compel compliance with the state program and

its permits. Act §520. Both the Secretary and the

public have access to a large body of information, in-

cluding nonconfidential permit application information,

to facilitate this enforcement role. Act §§ 507(e), 517

(f) ; see 830 C.F.R. § 840.14 (1979).

The Secretary’s ultimate power over lax state enforce-

ment is set out in section 521(b) of the Act. When the

Secretary determines that, violations result from a state’s

lee > ,avent or capability to euccvee the state program,

he is to enforce permit conditions du .ctly, and to take

over the entire permit-issuing process hims.'f.

Direct intervention by the Secretary in th. operation

of state regulatory programs is clearly intended as an

extraordinary remedy. See H.R. Rep. No. 218, 95th

Cong., 1st Sess. 129 (1977), reprinted in [1977] U.S.

Cope Conca. & AD. NEws 593, 661. The Secretary’s pri-

mary means of guaranteeing effective state programs lies

in his approval function at the beginning of the process.

A state wishing to take over regulatory responsibility

for administering the Act within its borders must sub-

mit a proposed state program to the Secretary for his

lla

approval. Act § 503. The Secretary may only approve

a program if he determines that the state “has the capa-

bility of carrying out the provisions of this Act and

meeting its purposes.” Act § 503(a). The proposed state

program must include “a State law which provides for

the effective implementatio[n], maintenance, and enforce-

ment of a permit system,” Act § 503(a) (4), and “rules

and regulations consistent with regulations issued by the

Secretary pursuant to this Act,” Act §503(a)(7). The

Secretary is required to hold a public hearing, to solicit

the views of other federal agencies, and to obtain the

written concurrence of the Environmental Protection

Agency with respect to certain aspects of the state pro-

gram. Act § 503(b).

C. Congressional Intent and the Tradition of State

Regulation

A major premise of appellant’s argument is that Con-

gress deliberately minimized the federal role in adminis-

tration of the Act out of deference to state prerogatives.

Appellant denies that the statute is based primarily on

environmental concerns, and insists that an “even more

fundamental purpose of the Act ... is to preserve the

federal structure of our nation and to leave with the

states primary responsibility for this land-use regula-

tion.” * Congress’ special solicitude for the states’ tradi-

tional role in controlling local land use, appellant claims,

prevented Congress from delegating to the Secretary au-

thority to dictate permit information requirements to

the states.

Our own examination of the Act and its legislative

history reveals a very different congressional assessment

of the tradition of state surface mining regulation. The

legislative history contains significant expressions of con-

® Appellant’s Supplemental Memorandum on Appeal at 4.

12a

gressional dissatisfaction with state mining regulation

practices:

[Despite claims from some quarters that state

reclamation laws have improved so significantly that

Federal mining standards are no longer needed, the

hearing record abounds with evidence that this is

simply not the case. For a variety of reasons, in-

cluding the reluctance of the State to impose strin-

gent controls on its own industry, serious abuses

continue.

H.R. Rep. No. 218, 95th Cong., 1st Sess. 58 (1977), re-

printed in [1977] U.S. Cope Conc. & Ap. News 593,

596. Congress preferred to leave primary governmental

responsibility with the states “because of the diversity

in terrain, climate, biologic, chemical, and other physical

conditions in areas subject to mining operations,” Act

§ 101(f), but skepticism about the states’ willingness to

implement the federal program justified the Secretary’s

continuing oversight role.

While it is confident that the delegation of primary

regulatory authority to the States will result in ade-

quate State enforcement, the committee is also of

the belief that a limited Federal oversight role as

well as increased opportunity for citizens to par

ticipate in the enforcement program are necessary

to assure that the old patterns of minimal enforce-

ment are not repeated.

H.R. Rep. No. 218, 95th Cong., Ist Sess. 129 (1977),

reprinted in [1977] U.S. Cope Conc. & Ap. NEws 593,

661.

Congress announced its willingness, “wherever neces-

sary, [to] exercise the full reach of Federal constitu-

tional powers to insure the protection of the public in-

terest through effective control of surface coal mining

operations.” Act §102(m). Nationwide standards were

13a

“essential in order to insure that competition in inter-

state commerce among sellers of coal produced in differ-

ent 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 bor-

ders.” Act §101(g)."° Congress’ concern about the

states’ ability to withstand economic temptation extended

to the very area of permit information with which we

are dealing:

Experience has shown that without a thorough and

comprehensive data base presented with the permit

application, and absent analysis and review both by

the agency and by other affected parties based upon

adequate data, th[{i]s judgment has often tradition-

ally reflected the economic interest in expanding a

State’s mining industry. Valid environmental fac-

tors tend to receive short shrift.

H.R. Rep. No. 218, 95th Cong., Ist Sess. 91 (1977), re-

printed in [1977] U.S. Cope Conc. & AD. NEws 593,

627.

Thus, the legislative history of the Act, the declara-

tions of congressional purpose it contains, and the allo-

cation of authority it creates between the Secretary and

the states confirm that Congress was not interested in

perpetuating the existing tradition of state mining reg-

ulation, and that Congress saw the need for both federal

standards and federal oversight to guarantee an effec-

tive change. Congress did not withhold powers that the

Secretary might require in his efforts to safeguard fed-

eral interests."

10 The prevention of this kind of destructive interstate competi-

tion is, of course, a traditional role for Congress’ power under the

Commerce Clause. See, e.g., United States v. Darby, 312 U.S. 100,

121-23 (1941).

11 We note that, during the Senate debates on the Act, Senators

Johnston and Domenici introduced what they referred to as “the

l4a

III. THE SOURCE OF THE SECRETARY’S

RULEMAKING POWER

The Secretary identifies two grants of rulemaking

power in the Act as the source of his authority to

promulgate regulations expanding the list of information

required to be submitted in permit applications. The

first of these provisions is a general rulemaking grant

typical of statutes that, like the Act, delegate extensive

responsibilities to administrative agencies.’ It provides

States rights amendment.” 123 Conc. Rec. 15,581 (1977). The

amendment would have freed the states from compliance with all

other provisions of Title V of the Act so long as they enacted

environmental performance standards at least as stringent as

those contained in Act §§ 515, 516. The states’ rights amendment

was defeated, 51 votes to 39. 123 CoNnG. Rec. 15,591 (1977).

Appellant’s “federalism” argument resembles to some extent an

attempt to attribute the intent embodied in this amendment to the

Congress that rejected it.

We also observe that appellant urged, earlier in this appeal, that

the Ser ate’s passage of a bill that would have freed the states

from their obligation to conform to the Secretary’s regulations

was “entitled to some consideration” as proving “that Congress

meant what it said” in section 507. Appellant’s Brief on Appeal

at 28. That bill has since died, and appellant professes to have

emerged “with renewed respect [for] the settled rule that post-

enactment history is not a useful guide to Congressional intention,”

i.e., that the failure of Congress to pass the bill does not weigh

against their argument. Appellant’s Supplemental Brief on

Rehearing En Banc at 18. We agree that the intent of the 95th

Congress is determinative in interpreting the Act as passed in

1977; evidence of that intent is not to be sought in actions taken

or not taken by subsequent Congresses. See Regional Rail Reor-

ganization Act Cases, 419 U.S. 102, 132 (1974).

12 See, e.g., § 105 of the Truth in Lending Act, 15 U.S.C. § 1604

(1976) :

The Board shall prescribe regulations to carry out the pur-

poses of this subchapter. These regulations may contain such

classifications, differentiations, or other provisions, and may

provide for such adjustments and exceptions for any class of

15a

that the Secretary shall “publish and promulgate such

rules and regulations as may be necessary to carry out

the purposes and provisions of this Act,” Act § 201(c)

(2). The second source is a more specific rulemaking

grant, tied to the provisions of title V of the Act, in

which the permit provisions are found. It requires the

Secretary to

promulgate and publish in the Federal Register

regulations covering a permanent regulatory pro-

cedure for surface coal mining and reclamation

operations performance standards based on and con-

transactions, as in the judgment of the Board are necessary

or proper to effectuate the purposes of this subchapter, to

prevent circumvention or evasion thereof, or to facilitate com-

pliance therewith;

§ 303(r) of the Communications Act of 1934, 47 U.S.C. § 303(r)

(1976) :

Except as otherwise provided in this chapter, the Commis-

sion from time to time, as public convenience, interest, or

necessity requires, shall—

(r) Make such rules and regulations and prescribe such

restrictions and conditions, not inconsistent with law, as may

be necessary to carry out the provisions of this chapter, or

any international! radio or wire communications treaty or con-

vention, or regulations annexted thereto, including any treaty

or convention insofar as it relates to the use of radio, to which

the United States is or may hereafter become a party;

§ 501 of the Federal Water Pollution Control Act, 33 U.S.C. § 1361

(1976) :

The Administrator is authorized to prescribe such regula-

tions as are necessary to carry out his functions under this

chapter.

Interpretations of the scope of these provisions may be found in

Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369

(1973), F.C.C. v. National Citizens Committee for Broadcasting,

436 U.S. 775, 793 (1978), and E.1. duPont de Nemours & Co. Vv.

Train, 430 U.S. 112, 182-33 (1977), respectively. See also note 15

infra.

16a

forming to the provisions of title V and establishing

procedures and requirements for preparation, sub-

mission, and approval of State programs and devel-

opment, and implementation of Federal programs

under the title.

Act § 501(b) (emphasis added) .”*

A. The Secretary’s Interpretation

The Secretary has cited sections 201(c) and 501(b) of

the Act as authority for his rulemaking, and has viewed

them as empowering him to expand the permit informa-

tion requirements beyond those specified in the Act. As

Congress recognized, “(t]he informational and environ-

mental requirements of this [Act] are its most vital

provisions.” S. Rep. No. 128, 95th Cong., Ist Sess. 53

(1977). The importance of an adequate data base to

state decisionmaking, federal supervision, and citizen

oversight makes the state program’s information-gather-

ing provisions crucial to the success of the Act. The Sec-

retary has concluded that the explicit information provi-

sions included in the Act should be supplemented to guar-

antee its effective implementation. As the interpretation

favored by the agency responsible for administering the

Act, this conclusion is entitled to some deference. See

Miller v. Youakim, 440 U.S. 125, 145 n.25 (1979).

Absent a contrary indication in the statute, we should

accept the Secretary’s judgment, for it is not

a reasonable canon of interpretation [to assume]

that the draftsmen of acts delegating agency pow-

18 Section 507(b) requires the permit application to “contain,

among other things,” the items listed in its numbered paragraphs.

This language demonstrates that Congress never intended to pro-

hibit the administrators of the Act from seeking information

beyond that specified in the statute, but it does not clarify the

distribution of power between the Secretary and the states. We do

not view section 507(b) itself as a grant of power to the Secretary.

17a

ers, as a practical and realistic matter, can or do

include specific consideration of every evil sought

to be corrected. . . . [This] is precisely one of the

reasons why regulatory agencies . . . are created,

for it is the fond hope of their authors that they

bring to their work the expert’s familiarity with

industry conditions which members of the delegat-

ing legislatures cannot be expected to possess.

American Trucking Ass’ns v. United States, 344 U.S.

298, 309-10 (1953).

Deference to the administering agency is particularly

appropriate when a complex regulatory statute emerges

from a process of difficult legislative gestation. The Sur-

face Mining Act was the result of a protracted effort,

dating back to the Ninetieth Congress, and including

presidential veto of bills passed by the Ninety-third and

Ninety-fourth Congresses."* From such a process of com-

promise and adjustment, a symmetrical statute contain-

ing explicit answers to every question of administrative

implementation is unlikely to emerge.

Appellant would insist that deference is due, not to the

Secretary, but to the individual state regulatory agencies

that bear primary responsibility for enforcement of the

Act. Appellant views this “primary” responsibility as

paramount and final responsibility. Our examination of

the Secretary’s approval and oversight roles convinces us

that this argument misconstrues the statute. Once a

state program has been approved, the state regulatory

agency plays the major role, with its greater manpower

and familiarity with local condition. It exercises front

line supervision, and the Secretary will not intervene

unless its discretion is abused. But ultimate responsi-

bility for guaranteeing effective state enforcement of

14 See H.R. Rep. No. 218, 95th Cong., Ist Sess. 57-61 (1977),

reprinted in [1977] U.S. CopE Conc. & AD. News 593, 595-99.

18a

uniform nationwide minimum standards lies with the

Secretary, and his duty to disapprove proposed state

programs that he considers ineffective may not be ob-

structed by a policy of judicial deference to the state

agencies proposing those programs. This is particularly

true when it comes to seeking the information from the

permittees on which his oversight will be based.

B. Interpretation of the Rulemaking Provisions

Appellant argues that the sections of the Act on which

the Secretary relies for his rulemaking powers confer no

substantive authority at all, and must instead be inter-

preted as routine housekeeping and procedural provisions.

We disagree.

Section 201(c) (2) of the Act empowers the Secretary

to “publish and promulgate such rules and regulations

as may be necessary to carry out the purposes and provi-

sions of this Act.” Appellant urges that the Secretary’s

interpretation of section 201(c) (2) would give him un-

limited power to enact rules, destroying the intended

structure of the Act by drowning the states in a sea of

irrelevant and time-consuming regulations. But as this

court observed of the Clean Air Act’s similar rulemaking

grant, * “[s]uch a provision does not provide the Ad-

ministrator with carte blanche authority to promulgate

any rules, on any matter relating to the... Act, in any

manner that the Administrator wishes.” Citizens to Save

Spencer County v. E.P.A., 600 F.2d 844, 873 (D.C. Cir.

18 Section 301(a)(1) of the Clean Air Act, 42 U.S.C. § 7601

(a) (1) (Supp. I 1977), provides:

The Administrator is authorized to prescribe such regulations

as are necessary to carry out his functions under this Act.

The Administrator may delegate to any officer or employee of

the Environmental Protection Agency such of his powers and

duties under this Act, except the making of regulations, as he

may deem necessary or expedient.

19a

1979). The Secretary’s regulations must not be arbi-

trary, capricious, or inconsistent with the Act, aud sec-

tion 526(a) (1) of the Act provides for review of the in-

dividual regulations on that basis in the district court.

Appellant is participating in that process in the district

court, and nothing we decide today forecloses appellant’s

challenges to individual regulations.

Appellant’s other argument against the Secretary’s

interpretation of section 201(c) (2) is a quantitative one.

Because the Act contains, in addition to section 201(c)

(2), twenty-one specific grants of rulemaking power,

appellant maintains either those specific grants or section

201(c) (2)’s general grant must be redundant—and the

21:1 ratio in favor of the specific grants demonstrates

that it is the interpretation of section 201(c) (2) that is

erroneous. Rather than conferring general rulemaking

power, in appellant’s view, that section merely empowers

the Secretary to engage in “routine housekeeping,” such

as setting up rules for distribution of government funds,

and allocating authority among his employees. Appellant

urges as a proposition of administrative law that the

existence of specific grants must eviscerate a general

grant of rulemaking power. That proposition cannot be

squared with recent Supreme Court decisions relying on

general rulemaking grants to uphold rulemaking author-

ity despite the presence of specific grants in the statutes

scrutinized. See, e.g., E.I. du Pont de Nemours & Co. v.

Train, 430 U.S. 112, 182 (1977) (general rulemaking

grant in § 501 of Federal Water Pollution Control Act,

83 U.S.C. § 1861 (1976), supports issuance of categorical

effluent limitations under § 301, 33 U.S.C. § 13811 (1976),

despite explicit specific rulemaking grants in, e.g., §§ 303,

304, 306, and 307, 33 U.S.C. §§ 1313, 1314, 1316, 1317

(1976) ) ; Mourning v. Family Publications Service, Inc.,

411 U.S. 356 (1973) (general rulemaking grant in § 105

of the Truth in Lending Act, 15 U.S.C. § 1604 (1976),

supports prophylactic “Four Installment Rule,” despite

20a

explicit specific rulemaking grants in, e.g., §§ 123, 125,

126, and 127, 15 U.S.C. § 1633, 1635, 1636, 1637

(1976) ).

The Secretary also relies on section 501(b) of the Act

as support for his authority. This section directs the

Secretary to promulgate regulations “establishing proce-

dures and requirements for preparation, submission, and

approval of State programs.” Appellant insists that the

evident meaning of this section is that the Secretary may

set out “mechanical and procedural provisions” govern-

ing formal aspects of the submission and approval proc-

ess. Appellant’s Supplemental Brief on Rehearing En

Banc at 28,

We recognize that the language of section 501(b) is

not entirely lucid, but the Secretary’s reading is a reason-

able one, and is supported by the use of similar language

in another provision of the Act. Section 405 deals with

state submission of plans for reclamation of abandoned

mines, and requires the Secretary to

promulgate and publish in the Federal Register

regulations covering implementation of an aban-

doned mine reclamation program incorporating the

provisions of title IV and establishing procedures

and requirements for p[re|paration, submission, and

approval of State programs consisting of the plan

and annual submissions of projects.

Act §405(a) (emphasis added). Section 405(d) in-

structs the Secretary to turn over exclusive responsibility

for reclamation programs to the states if they submit

an acceptable program. The Secretary is to “monitor the

progress and quality of the program,” Act § 405(i),

and he

shall withdraw such approval and authorization if

he determines upon the basis of information pro-

vided under this section that the State program is

2la

not in compliance with the procedures, guidelines,

and requirements established under subsection 405

(a).

Act §405(d) (emphasis added). This continuing duty

to withdraw approval of noncomplying state programs

provides the Secretary’s only power to revoke the state’s

authorization to administer the reclamation program. It

would be unreasonable to assume that this severe sanc-

tion was intended to be invoked when the Secretary

realizes that in approving the program initially he had

overlooked a procedural defect, but not when experience

demonstrates that the state is conducting an inadequate

program. The clear implication of the language of sec-

tion 405(d) is that the Secretary has authority under

section 405(a) to establish procedures and requirements

that have substantive content beyond the specification

of procedural formalities for submission of state pro-

grams. It is therefore quite reasonable to read the

identical language in section 501(b) as granting equally

substantive powers.

Appellant offers only one argument in favor of its own

reading of section 501(b). This is a variant of the re-

ductio ad absurdum suggested in connection with section

201(c) (2). Appellant urges that if the Secretary does

have rulemaking authority in the area of program ap-

proval, he can dictate every detail of the states’ pro-

grams, and thereby destroy their role in flexible imple-

mentation of the Act. But as we have pointed out earlier,

the power to issue regulations is not the power to issue

any regulations. The Secretary has no more carte

blanche under section 501(b) than he has under section

201 (c) (2).

Appellant’s misconception of the role of section 501 (b)

is based on a more fundamental misunderstanding. Ap-

pellant has argued in its briefs and at oral argument

that even if the Secretary may withhold approval of a

22a

state program because its permit information require-

ments fail to include necessary items not explicitly re-

quired by the Act, he may not advise the states of his

additional requirements by regulation. Instead, he must

proceed by adjudication on a case-by-case basis. Appel-

lant’s view cannot be reconciled with a significant body

of case law favoring the use of rulemaking where agen-

cies have adjudicatory power over the subject and at least

some rulemaking authority.

In National Petroleum Refiners Ass’n Vv. F.T.C., 482

F.2d 672 (D.C. Cir. 1973), cert. denied, 415 U.S. 951

(1974), this court upheld the power of the FTC to issue

substantive rules governing its adjudications. Examining

a line of cases including United States v. Storer Broad-

casting Co., 351 U.S. 192 (1956), and National Broad-

casting Co. v. United States, 319 U.S. 190 (1943), the

court recognized an “obvious judicial willingness to per-

mit substantive rulemaking to undercut the primacy of

adjudication in the development of agency policy.” 482

F.2d at 679. The court praised the agency’s use of rule-

making as a method for announcing new norms of

conduct:

[T]}here is little question that the availability of

substantive rule-making gives any agency a valu-

able resource-saving flexibility in carry out its task

of regulating parties subject to its statutory man-

date. More than merely expediting the agency’s job,

use of substantive rule-making is increasingly felt

to yield significant benefits to those the agency regu-

lates. Increasingly, courts are recognizing that use

of rule-making to make innovations in agency policy

may actually be fairer to regulated parties than

total reliance on case-by-case adjudication.

Id. at 681. This approbation may also be seen in a large

body of cases that have rejected claims that a given

agency may operate only on a case-by-case basis, and

23a

have likewise rejected crabbed interpretations of those

agencies’ rulemaking powers. See, e.g., E.J. du Pont de

Nemours & Co. v. Train, 430 U.S. 112, 126-35 (1977)

(national effluent limitations permissibly imposed by reg-

ulation on state-issued permits under § 301 of the Clean

Water Act); Weinberger v. Hynson, Westcott & Dun-

ning, Inc., 412 U.S. 609, 619-21 (1973) (Food and Drug

Administration may deny efficacy hearings to manufac-

turers who have not undertaken adequate clinical in-

vestigations conforming to regulations); cf. Permian

Basin Area Rate Cases, 390 U.S. 747, 774-77 (1968)

(area rates rather than individual natural gas rates may

be set by Federal Power Commission).

The rationale of National Petroleum and kindred cases

lends additional strength to our conclusion that both sec-

tions 201(c) (2) and 501(b) of the Surface Mining Act

authorize the Secretary to issue rules governing approval

of state programs. Appellant’s arguments in favor of a

trivializing construction of these provisions are wholly

without merit. The only remaining question is whether

some other evidence demonstrates that Congress intended

to exclude from the Secretary’s authority the power to

require permit information that he determines to be nec-

essary to an effective program.

C. “Common Sense” and Exhaustion

Appellant’s most significant argument against the Sec-

retary’s rulemaking power is the claim that, even if the

Secretary has some authority to promulgate criteria for

the approval of state programs, the explicit permit ap-

plication provisions of the Act were intended as the ex-

clusive federal list of necessary data. Appellant deduces

this limit on the Secretary’s power from two premises—

a “common sense” rule of regulatory authority, and the

exhaustive length and detail of the explicit statutory

provisions.

24a

Appellant insists that granting the Secretary the power

to expand the permit information requirements would

defy common sense: “The Congress cannot reasonably be

supposed to have created an administrative structure so

bizarre that the agency which has the exclusive power

to decide the issues is powerless to determine the in-

formation which it needs to reach that decision.” Ap-

pellant’s Supplemental Brief on Rehearing En Banc at

24. Because the state regulatory authority has the power,

not subject to federal review, to make permit-issuing de-

cisions, the state must have the power to specify the

information that applicants submit.

Of course, the superficial appeal of this “common

sense” argument is somewhat undercut when we recog-

nize that the Secretary has only purported to promulgate

minimum information requirements, and has not sought

to limit the state’s ability to require further data from

applicants. And appellant must admit that the Act itself

grossly violates this maxim: subsection 507(b) alone

contains seventeen numbered paragraphs specifying in-

formation that the state regulatory authority must

require.

The conclusive answer to appellant’s “common sense”

argument, however, is that even if individual state per-

mit decisions are unreviewable, the state’s overall per-

formance in administering the Act is not. Congress be-

lieved that guaranteeing effective state enforcement re-

quired the vigilance of both the Secretary and the public,

and so provided that permit applications, as well as in-

spection reports, must be available to the public. Act

§§ 507(e), 517(f). Since the Secretary must use the

information submitted with permit applications in evalu-

ating the continuing compliance of the state permit proc-

ess with the Act, there is nothing “bizarre” about allow-

ing the Secretary to tell the states that they need more

information to meet their responsibilities.

25a

Appellant next argues that sections 507 and 508 of the

Act are carefully devised, limited exceptions to the “com-

mon sense” rule, and that they were clearly intended to

exhaust federal intervention into the information-gather-

ing process. But the Act itself and its legislative history

do not demonstrate such an intent.

We have already observed in passing that, although ap-

pellant refers to sections 507 and 508 as the only infor-

mation requirements of the Act, other scattered sections

in title V also demand information from permit appli-

cants. See note 3 supra. This technical observation is

relevant here, because it tends to rebut the suggestion

that sections 507 and 508 comprise a compact, meticulous

listing of all the information that Congress considered

essential for permit decisionmaking. The addition of

other information requirements in scattered sections sug-

gests ad hoc responses to perceived needs for data rather

than an integrated effort to produce a comprehensive

list.**

The House Committee report contains a more plausible

explanation of the function sections 507 and 508 were in-

tended to serve. After discussing the need for a

“thorough and comprehensive data base” in language we

have already quoted, the report continues: “To meet this

problem the bill delineates in detail the type of informa-

16 Even the list in section 507 itself was not the product of a

unified analytic effort. Subsection 507(g¢), for example, requiring

submission of a “blasting plan” with the permit application, was

not a feature of the bill vetoed by President Ford in 1975, or of the

version reported by the Senate Committee on Energy and Natural

Resources in 1977. See H.R. REP. No. 189, 94th Cong., Ist Sess.

26-29 (1975) (conference report); S. Rep. No. 128, 95th Cong.,

1st Sess. 16-18 (1977). It was added by a Senate floor amendment,

to conform with the bill reported by the House Cemmittee on In-

terior and Insular Affairs and passed by the House. See 123

Conc. Rec. 15,741 (1977); H.R. Rep. No. 218, 95th Cong., Ist

Sess. 23 (1977).

26a

tion required in permit applications in sections 507 and

508 and the criteria for assessing the merits of the ap-

plication in section 510.” H.R. Rep. No. 218, 95th Cong.,

lst Sess. 91 (1977), reprinted in [1977] U.S. CoDE

Conc. & Ap. NEws 593, 622 (emphasis added). Because

of the importance of information to a proper decision

by the regulatory authority and to effective oversight by

the Secretary, Congress included a detailed list of the

type of information that would have to be at the state’s

disposal. Such a list is not necessarily exhaustive, and

does not necessarily represent Congress’ judgment that

the states should be free to decide for themselves whether

to seek any other information.

The Act itself contains a persuasive counterexample

to the suggestion that detailed enumerations must be

exhaustive. Section 515 spells out the Act’s central en-

vironmental performance standards. Counting the pages

in Statutes at Large, we find that section 515 is roughly

twice the length of sections 507 and 508 combined. Sec-

tion 515(b) alone contains twenty-five numbered para-

graphs containing directives as specific as “[to] refrain

from the construction of roads or other access ways up

a stream bed or drainage channel or in such proximity

to such channel so as to seriously alter the normal flow

of water,” Act § 515(b) (18). Yet the legislative history

makes absolutely clear the expectation that the Secretary

would flesh out these requirements in his regulations:

The committee believes that it has struck a balance

between legislation which merely frames performance

standards in terms of general objectives and stand-

ards which are cast in terms more detailed than

those generally found in regulatory legislation. In

choosing a middle path, the committee is mindful of

the past failures on the State level and thus bases its

approval of H.R. 2 on the expectation that Federal

regulations promulgated under the act will fully im-

27a

plement the environmental performance standards.

Obviously, the mere reproduction of the statutory

environmental performance standards in the regula-

tions would be inadequate.

H.R. Rep. No. 218, 95th Cong., 1st Sess. 85 (1977), re-

printed in [1977] U.S. Cope Conc. & Ap. News 593,

622. Although the legislative history does not contain a

similar exhortation regarding permit applications, we

cannot conclude that the mere length or specificity of

portions of sections 507 and 508 manifests a desire to

exclude the Secretary’s rulemaking powers from their

domain.

The Act contains numerous generally phrased and

specifically detailed limitations on the freedom of surface

mine owners to operate as they please. Some of these

limitations are reflected in the permit application provi-

sions, and some are not; the legislative history does not

enlighten us as to the reasons for Congress’ selectivity.

Appellant would have us rule that the statutory list is

exhaustive, and that the Secretary never has the power to

supplement that list when he concludes that further in-

formation is needed for the proper administration of the

Act. We find that sections 507 and 508 represent a

diligent and comprehensive congressional effort to guide

the Secretary with respect to the type of information

a permit application should require. Appellant has not

demonstrated a congressional intent to make these provi-

sions an exclusive federal list.

IV. CONCLUSION

The Surface Mining Control and Reclamation Act of

1977 enacts a national plan to alleviate the harmful

effects of surface mining. Because of past failures on

the state level, the Act provides for national standards

relating to environmental performance, and federal over-

sight of the state programs applying those standards to

28a

local geographic conditions. Before the Secretary may

approve a state program, he must conclude that the pro-

gram is sufficient to carry out the purposes of the Act.

We hold that the Act does grant the Secretary rule-

making power enabling him to specify by regulation crit-

eria necessary for his approval of a proposed state pro-

gram. We hold that the Act’s explicit listings of infor-

mation required of permit applicants are not exhaustive,

and do not preclude the Secretary from requiring the

states to secure additional information needed to ensure

compliance with the Act. This question concerning the

existence of the Secretary’s authority is the only question

decided and appellant is free to continue to contest the

specific regulations in the district court. The judgment

of the district court is

Affirmed.

29a

TAMM, Circuit Judge, dissenting: We are confronted

in this case with interpreting an act of Congress whose

linguistic excesses make its exact meaning seemingly

difficult to ascertain. Those difficulties impel my brethren

of the majority, however, to lose sight of the congres-

sional objective. I believe that it is not necessary to rely

on remote inferences to ascertain the obvious design of

the legislation. It is not necessary to draw upon a legal

stamp collection, to utilize ideological mutations, or to

create a legal “bodyguard of definitions, conclusions,

corollaries, propositions explicit and propositions im-

plicit” ' to determine the intent of the Congress and the

purpose of the Act. No amount of legal acrobacy can

dispel the actual wording of the statute in placing prime

responsibility in the states for primarily programming

the coal mining regulations. In the hope that the reason-

ing set out hereafter will magnetize legal scholars to a

true appreciation of the law as Congress actually in-

tended it to be, I set out my interpretation of the statute

under consideration. In some areas I shall be required

to enter already well plowed fields.

In this appeal from a partial final judgment of the

United States District Court for the District of Colum-

bia, we must determine whether the Secretary of the

Interior may prescribe minimum requirements for coal-

mining permit applications that states must adopt be-

fore they can assume authority for regulating coal min-

ing 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). I

conclude that the Secretary lacks the power to demand

that states require applicants to provide more informa-

tion than that specified in sections 507 and 508 of the

Act, 30 U.S.C. §§ 1257-1258. Therefore, I would reverse

the judgment of the district court and remand the case

1 Erasmus, as cited in A. Koestler, THE SLEEPWALKERS (1959).

30a

with instructions to remand the regulations at issue to

the Secretary.

I.

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 responsi-

bility 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), 830 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 cer-

tain 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. Jd. If a state fails to submit a

satisfactory program, or if it does not wish to assume

jurisdiction over mining within its borders, the Sec-

retary 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.

8la

§ 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 accom-

pany its permit request. See id. § 507(b), 30 U.S.C.

§ 1257(b).

In re Permanent Surface Mining Regulation Litigation,

617 F.2d 807, 808 (D.C. Cir. 1980) (per curiam) (ap-

peal from denial of preliminary injunction).

In March of 1979, the Secretary issued permanent reg-

ulations under the Act. See 44 Fed. Reg. 14902, 15312-

463 (1979) (codified at 30 C.F.R. pts. 700-890 (1979).?

Among these rules are specifications for the minimum

information that a state must require in a permit appli-

cation before the Secretary will approve the state’s pro-

gram 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 appropri-

ate regulatory authority. Compare id. with Act §§ 507-

508, 30 U.S.C. §§ 1257-1258."

2 Many of the parties to the present litigation in the district

court also challenged the Secretary’s interim regulations promul-

gated under §§ 501-502 of the Act, 30 U.S.C. §§ 1251-1252. See

In Re Surface Mining Regulation Litigation, 627 F. 2d 1346 (D.C.

Cir. 1980), aff’g in part, rev’g in part, and remanding 452 F.

Supp. 327, 456 F. Supp. 1301 (D.D.C. 1978).

* 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 In-

dian 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 re-

quire submission of this information. See Act § 507(b) (13),

80 U.S.C. § 1257(b) (13). Under the regulations, the applicant also

must list all other permits needed to conduct the proposed min-

ing activities and include in the list the name and address of the

regulating authority, permit identification numbers, and the pres-

32a

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 as-

pects of the Secretary’s permanent regulations, including

the information requirements. The district court consoli-

dated these cases and divided the issues involved into two

groups, one involving statutory and other general ques-

tions 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 Perm-

anent Surface Mining Regulation Litigation, 617 F.2d

807 (D.C. Cir. 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 inti-

mating no view on the merits of those appellants’ claims.

Id. at 809.

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 infor-

ent status of these other permit applications. 30 C.F.R. §§ 778.19,

782.19. The applicant must describe existing structures and pro-

vide maps identifying the location of various buildings, facilities,

and operational areas to be used in mining activities. Jd. §§ 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. Jd. §§ 780.29-

88, 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 re-

quired under §507(g), 30 U.S.C. § 1257(g), must include. 30

C.F.R. §§ 780.13, 784.13.

33a

mation 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), [here-

inafter cited as District Court Opinion].* See generally

id. at 30-33. On the motion of Peabody Coal Company,

the district court found no just reason to delay entering

judgment on this issue and, on March 17, entered a

final judgment on the validity of these rules. See gener-

ally Fep. R. Civ. P. 54(b). Peabody, a party to the ear-

lier appeal regarding the preliminary injunction, filed

this appeal. To ensure a prompt disposition of the sig-

nificant question presented, this court granted expedited

consideration before the division of the court which heard

the appeal concerning preliminary relief.

II.

A.

I begin my 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 Asso-

ciation, 628 F.2d 217 (D.C. Cir. 1980). The Secretary

relies primarily on two provisions to demonstrate that

Congress granted him authority to issue minimum stand-

ards for state permit applications. I 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. I have two problems with this analysis.

4 For the text of § 501(b), 30 U.S.C. § 1251(b), see page 6 infra.

34a

First, section 201(c) (2) itself states that the regulations

must “be necessary to carry out the purposes and provi-

sions 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. I am thus left precisely where

I began. Second, I am not satisfied with either party’s

invocation of the long-standing canon of statutory con-

struction 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 super-

fluous. 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. I cannot base a 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, 617 F.2d 875, 879 (D.C. Cir. 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 me more pause. It

empowers the Secretary to “promulgate and publish...

regulations . . . establishing procedures and requirements

for preparation, submission, and apprevai of State pro-

grams... .” 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.

35a

§§ 1265-1266.5 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 ambigu-

ity, and there is no clear literal meaning that we are

bound to give effect.” United States v. Davis, 617 F.2d

677 (D.C. Cir. 1979).°

I next turn to the Act’s legislative history in the hope

that it will shed some light on the statute’s words. Un-

fortunately, this, too, is a blind alley. The Senate report,

the House report, the conference report, and the floor

debate are all silent on whether the Secretary may add

application specifications beyond those enacted in sections

507 and 508.

5 Peabody, in its initial brief filed in conjunction with the ap-

peal of the denial of preliminary relief, conceded that the Secre-

tary 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, 617

F.2d 807 (D.C. Cir. 1980), Joint Brief of Appellants at 7, 19.

I assume, but do not decide, that this construction is correct.

®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 regula-

tions consistent with regulations issued by the Secretary pursuant

to this Act.” Act §508(a), 30 U.S.C. §1258(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 I found with § 201(c) (2), as

discussed in the 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,

36a

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 regula-

tory program including technical requirements, permits

process[es], and procedures for submission of State pro-

grams.” H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 62

(1977), reprinted in [1977] U.S. CopE Conc. & AD.

NEws 593, 601. Once again, I do not believe this lan-

guage is clear at all. The single sentence appears in a

short summary of section 501 and simply describes sec-

tion 501(b) as giving the Secretary rulemaking power

for the “full regulatory program,” then lists specific ex-

amples. It does not purport to define what the “full reg-

ulatory program” and its limits are. To determine what

the Secretary may do in relation to “technical require-

ments, 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.’ Likewise,

he clearly has full control over the permitting process in

two instances: mining on federal land, see Act § 523, 30

U.S.C. § 1272, and mining in states that do not submit

satisfactory regulatory programs, see id. § 504, 30 U.S.C.

§ 1254. I still must decide how much further his author-

ity over the permitting process extends—in particular,

how control over permitting is allocated between the Sec-

retary and the state regulatory authority when the state

wishes to assume responsibility for mining within its

borders.

ITI.

With no clear meaning arising from the language of

the Act itself or Congress’s discussion of it. I must now

7 See note 5 supra.

87a

look broadly at the Act’s purposes and structure to de-

cide which approach is more faithful to Congress’s over-

all design. See, e.g., United States v. Bornstein, 423 U.S.

303, 310 (1976). My examination indicates that Congress

intended to vest in the states primary regulatory and de-

cisionmaking 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, I

conclude that the Act itself defines the minimum informa-

tion permit applications must contain and that the Secre-

tary’s authority in this area is limited to determining

whether the states have satisfied that minimum. With

this understanding, I would hold that the Secretary lacks

power to demand that states require more information

from applicants than the Act itself spells out.

A.

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 de-

veloping, 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) (emphasis added). The federal gov-

ernment, of course, “assist[s] the States in the develop-

ment of State programs for surface coal mining and rec-

lamation 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, re-

printed in [1977] U.S. Cope Conc. & Ab. NEws at 595

38a

(emphasis added). 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. CopDE Conc. & Ap. 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 min-

ing. 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.’ 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. Jd. §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 While the bill that became the Surface Mining Act was pend-

ing, Secretary of the Interior Cecil K. Andrus wrote to Repre-

sentative Morris K. Udall, chairman of the House committee con-

sidering 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. CopE Conc. & AD. NEws

593, 687. Congress apparently rejected this request.

®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 ‘“con-

sistent 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 “con-

sistent with” as meaning “no less stringent than and meet[ing}

the applicable provisions of the regulations the Secretary has is-

sued. 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.

B.

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 * ould 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 tradition-

ally reflected the economic interest in expanding a

State’s mining industry. Valid environmental fac-

tors tend to receive short shrift. To meet this prob-

lem the bill delineates in detail the type of informa-

tion 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. Cope Conc. & Ap. 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., Ist

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 permit-granting

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, com-

monsense proposition that the decisionmaker is in the best

position to decide what information it needs, True, the

40a

Secretary is the federal official who approves state pro-

grams, but the power to approve or to reject state pro-

grams 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 con-

tain.” It also states in detail the factors that must be

present before the Secretary may approve a proposed pro-

gram. See Act § 508, 30 U.S.C. § 1258. A construction

that would allow the Secretary to expand these require-

ments as he saw fit in effect would permit him, by regu-

lation, to take away the very discretion Congress sought

to vest in the states."* Like the camel sticking his nose

10 The requirement set out in more than a score of paragraphs

in sections 507 and 508, 30 U.S.C. §§ 1257 & 1258 (Supp. I 1977),

are indeed both extensive and detailed, listing with considerable

particularity the necessary contents of each application and recla-

mation plan. This is not a case in which Congress outlined a

scheme, leaving the details of its implementation to the Secretary.

Instead, it is a case in which Congress, wanting to commit the

substance of its compromise on the surface mining question to law,

specified the details itself.

The majority rejects any inference based upon the “mere length

or specificity” of sections 507 and 508 on the grounds that the

legislative history of section 515, a longer and more detailed sec-

tion, makes it clear that the Secretary's regulations are expected

to “flesh out” the statutory requirements. Majority opinion at

26-27. I believe that the different function served by section 515

makes any comparison irrelevant. That the Secretary’s expertise

should be of some use in the formulation of environmental protec-

tion performance standards by no means dictates the conclusion

that the Secretary should be able to tell the states what informa-

tion to require on permit applications. See note 5 supra.

The Secretary argues that his construction of the Act de-

serves 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. 2.g., Skidmore v.

Swift, 323 U.S. 134, 189-40 (1944). In deciding how much defer-

ence to pay an agency’s interpretation, a court must look in part

4la

in the tent, the Secretary easily could take over entirely.

I 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).

C.

My conclusion 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 ap-

prove any particular state’s proposed program if it ap-

to “the nature of [the agency’s] expertise.” Batterton v. Francis,

482 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., 100 S. Ct. 2051, 2062 (1980). Moreover, the

fundamental issue in the case before us is whether Congres in-

tended 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, I feel free to reach a decision based on my

own independent analysis.

For similar reasons, I must reject the Secretary’s reliance on

the Supreme Court’s decision in E.I. du Pont de Nemours & Co.

v. Train, 480 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 emis-

sions under § 301 of the Federal Water Pollution Control Act

Amendments of 1972, 38 U.S.C. § 1811 (1976). Those regula-

tions thus concerned the substantive performance standards, which

Congress clearly authorized the Administrator to set. The regu-

lations at issue in this appeal, however, do not relate to substantive

environmental standards, over which I have assumed the Secre-

tary has complete control, see page 8 and note 5 supra, but to

information that the permit-granting authority requires for the

application process. See note 10 supra, Furthermore, the language

of the statute in du Pont was far clearer in authorizing the Ad-

ministrator of EPA to set performance standards than is this Act

concerning the Secretary of the Interior’s power over application

requirements.

42a

pears 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, if 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 ap-

pears, 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. § 1258, and to monitoring success

through the federal inspection systems, see id. § 517, 30

U.S.C. § 1267.%

IV.

Congress intended states to assume the “primary gov-

ernmental responsibility” for enforcing the Surface Min-

ing Act. To ensure states would live up to this duty, 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 pro-

gram.

I realize, of course, that my construction of the Act is

the product of a general view of the distribution of au-

thority Congress was trying to strike. Neither the lan-

guage of the statute itself nor its legislative history has

12 Because I conclude that the regulations at issue violate the

Act, I do not reach Peabody’s contention that the Act, if it did

authorize the regulations, would violate the tenth amendment.

43a

given us a clear path to take. Senate activity concerning

these provisions in the last Congress, see S. 1403, 96th

Cong., 1st Sess., 125 Conc. Rec. $12350 (daily ed. Sept.

11, 1979),'* gives some consolation, however, for I as-

sume that Congress will correct the majority decision if

it disagrees or will change the scheme it enacted if it

now believes another approach would be more satis-

factory.

For the foregoing reasons, I would reverse the judg-

ment of the district court and remand with instructions

that the regulations be returned to the Secretary for

further consideration in light of these views.

13 This bill in part would have deleted 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. The

bill passed the Senate on September 11, 1979. See 125 Conc. REc.

$12387 (daily ed. Sept. 11, 1979). It was referred to the House

Committee on Interior and Insular Affairs on September 13, 1979.

44a

MACKINNON, Circuit Judge, dissenting: My views co-

incided with the original majority opinion of the Division

(Slip op.) in this case and they concur with those now

expressed in Judge Tamm’s dissent. As I stated previ-

ously, to allow the Secretary’s overly comprehensive reg-

ulations to preempt the authority of the states to act in

the first instances, would as a practical matter, operate

to stifle the activity of all the states in their handling

of what Congress has indicated to be largely local state

problems. Congress did not express an intent to so limit

the authority of the states. In effect the Secretary’s reg-

ulations practically smother all state initiative. Thus, to

uphold the excessively broad regulations violates the Con-

gressional intent in an unusual way. The Secretary’s

action in this case is a prime example of the extravagant

expansion of federal power by departmental regulations

that will have the effect of law.

I cannot read the regulations in question as the major-

ity asserts, as being limited to “providing oversight,

advice, and back-up authority, and the states bearing the

majority responsibility for implementation of the Act.”

Maj. Op. at 3. (emphasis added). If the regulations were

so limited I would support them.

The majority states that its “inquiry is narrow,” but

it expands this narrow jurisdiction into a very far reach-

ing order. As the majority recognizes Congress delegated

“primary regulatory authority to the States” and “a lim-

ited Federal oversight role” was given to the Secretary.

Maj. Op. at 12-13. In my view the majority has overly

expanded an oversight role into a role that permits the

Secretary to formulate organizational and operational

rules for the states. This is a great deal more than “over-

sight.” I would restrict the Secretary on initial approvals

to the specific confines of the data that Congress specified

in the statute.

45a

In my view the cardinal error made by the majority

opinion appears on page 8 where it states:

The Secretary’s primary means of guaranteeing

effective states programs lies in his approval func-

tion at the beginning of the process.

Maj. Op. at 11 (emphasis added). There is nothing in

the statute, experience or logic to support that statement

and it is the keystone the majority relies upon to support

its expansion of the Secretary’s power. The primary

means of guaranteeing effective state programs lies in

the inspection function which continues as long as mining

operations continue. It would be pure folly to rely princi-

pally upon the approval at the beginning.

It is thus my opinion that the majority has expanded

the Secretary’s authority beyond the intent of the statute

at the expense of authority that Congress intended to be

exercised by the states in the first instance.

46a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

September Term, 1979

Civil Action No. 79-1144

No. 80-1308

IN RE:

PERMANENT SURFACE MINING

REGULATION LITIGATION

PEABODY COAL CO.,

Appellant

Before: Wright, Chief Judge; McGowan, Tamm, Rob-

inson, MacKinnon, Robb, Wilkey, Wald,

Mikva, Edwards, and Ginsburg, Circuit

Judges

ORDER

Upon consideration of the petition for rehea.ing and/

or suggestion for rehearing en banc filed herein by appel-

lee (federal), it is

ORDERED, by the Court, en banc, that the above cap-

tioned case shall be reheard by the Court sitting en banc.

The Clerk is directed to schedule this case for oral argu-

ment during the September Term, 1980. And it is

47a

FURTHER ORDERED, by the Court, en banc, sua

sponte, that the judgment and opinions entered in this

case on July 10, 1980 be, and hereby are, vacated.

Per Curiam

FoR THE COURT:

GEORGE A. FISHER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Chief Deputy Clerk

Circuit Judge McGowan did not participate in the fore-

going order.

Circuit Judges Tamm, MacKinnon, Robb, and Wilkey

would deny the suggestion for rehearing en banc.

48a

APPENDIX C

U.S. COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

No. 80-1308

IN RE: PERMANENT SURFACE MINING REGULATION

LITIGATION, PEABODY COAL COMPANY,

Appellant

July 10, 1980

Before TAMM and MACKINNON, Circuit Judges, and

HAROLD H. GREENE,” U.S. District Judge for the Dis-

trict of Columbia.

Opinion for the court filed by Circuit Judge TAMM.

Concurring opinion filed by Circuit Judge MACKINNON.

Dissenting opinion filed by District Judge GREENE.

TAMM, Circuit Judge: In this appeal from a partial

final judgment of the United States District Court for

the District Court for the District of Columbia [14 ERC

1083]; we must determine whether the Secretary of the

Interior may prescribe minimum requirements for coal-

mining permit applications that states must adopt be-

fore they can assume authority for regulating coal min-

ing 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 informa-

tion 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 Sec-

retary.

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

49a

I,

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 responsi-

bility for developing, authorizing, issuing, and enforcing

regulations for surface mining and reclamation opera-

tions 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 con-

cerns 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 cer-

tain 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. Jd. §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 opera-

tions. Id. § 506(a), 30 U.S.C. § 1256(a). The Act

50a

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),

80 U.S.C. § 1257(b).

In re Permanent Surface Mining Regulation Litigation,

Nos. 79-2073 & 79-2116. slip op. at 3 [14 ERC 1012]

(D.C. Cir. Jan. 18, 1986) (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,

15312-4638 (1979) (codified at 30 C.F.R. pts. 700-890

(1979) ).* 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 informa-

tion the Act ilself prescribes for applicants to submit to

the appropriate regulatory authority. Compare id. with

Act §§ 507-508, 30 U.S.C. §§ 1257-1258."

1 Many of the parties to the present litigation in the district

court also challenged the Secretary’s interim regulations promul-

gated 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 [14 ERC 1421] (D.C. Cir. May 2, 1980), aff’g in part,

rev'g in part, and remanding 452 F.Supp. 327, 456 F.Supp. 1301

[11 ERC 1598, 2078] (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), 788.24(d), (h)-(k). The Act does not require submis-

sion of this information. See Act §507(b)(18), 30 U.S.C.

§ 1257(b) (18). Under the regulations, the applicant also must list

all other permits needed to conduct the proposed mining activities

5la

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, includ-

ing the information requirements. The district court con-

solidated 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 Perma-

nent 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 ap-

pellants’ claims. /d., 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 struc-

ture of the Act, the general grants of rulemaking au-

thority, and Section 501(b) support the Secretary’s

power” to promulgate minimum requirements for permit

and include in the list the name and address of the regulating au-

thority, 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 opera-

tional areas to be used in mining activities. Jd. §§ 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. Jd. §§ 780.29-.38,

784.17-.19, .22. The Act has no comparable provisions for any

of the foregoing requirements, either. See Act §§ 507-508. Like-

wise, 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. §§ 780.18, 784.18.

52a

applications under state programs that exceed the in-

formation required under the Act. In re Permanent Sur-

face Mining Regulation Litigation, Civ. No. 79-1144, at

$1 (D.D.C. Feb. 26, 1980) (memorandum and order)

[hereinafter cited as District Court Opinion].* See gen-

erally id. at 30-33. On the motion of Peabody Coal Com-

pany, the district court found no just reason to delay

entering judgment on this issue and, on March 17, en-

tered a final judgment on the validity of these rules.

See generally Fep. R. Civ. P. 54(b). Peabody, a party

to the earlier appeal regarding the preliminary injunc-

tion, filed this appeal. To ensure a prompt disposition of

the significant question presented, this court granted ex-

pedited consideration before this division of the court,

which heard the appeal concerning preliminary relief.

II.

A.

We begin our effort to construe the Secretary’s powers

under the Surface Mining Act by examining the lan-

guage of the Act itself. See, eg., 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 au-

thority to issue minimum standards for state permit ap-

plications. We do not believe these sections are so clear

as the Secretary contends.

The first of the two provisions, section 201(c) (2), au-

thorizes 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

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

[14 ERC 1816)

53a

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 provi-

sions of this Act... .” This language still begs the

question of whether prescribing additional information

requirements for states to demand in permit applica-

tions is consistent with the Act. We thus are left pre-

cisely 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 au-

thority 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 pro-

visions will make section 201(c) (2) redundant of the

specific grants or vice versa. We cannot base our deci-

sion on a method of statutory construction that, when

applied to this act, is so hopelessly circular. Cf. Ameri-

can 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 pro-

grams... .” 80 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,

54a

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." Alternatively, section 501(b) could per-

tain 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,

No. 78-2246, slip op. at 8 (D.C. Cir. Oct. 26, 1979).°

B,

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 re-

port, the House report, the conference report, and the

* 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 stand-

ards 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 §508(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), 80 U.S.C. § 1291/25). These clauses have

the same problem of circularity we found with § 201(c) (2), as

discussed in the text: the state must conform only to those regu-

lations that are consistent with the Act, so we still must decide

whether these particular regulations conform to the Act’s purposes.

55a

floor debate are all silent 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 regula-

tory program including technical requirements, permits

process[es], and procedures for submission of State pro-

grams.” H.R. Rep. No. 95-218, 95th Cong., 1st Sess.

62 (1977), reprinted in [1977] U.S. Cope Conca. & Ap.

NEws 593, 601. Once again, we do not believe this lan-

guage is clear at all. The single sentence appears in a

short summary of section 501 and simply describes sec-

tion 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.® Likewise, he clearly has full control over

the permitting process in two instances: mining on fed-

eral land, see Act § 523, 30 U.S.C. § 1273, and mining

in states that do not submit satisfactory regulatory pro-

grams, see id. § 504, 80 U.S.C. § 1254. We still must

decide how much further has authority over the per-

mitting process extends—in particular, how control over

permitting is allocated between the Secretary and the

state regulatory authority when the state wishes to as-

sume responsibility for mining within its borders.

6 See note 4 supra,

56a

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 de-

cide which approach is more faithful to Congress’s overall

design. See, e.g., United States v. Bornstein, 423 U.S.

803, 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 infor-

mation permit applications must contain and that the Sec-

retary’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.

A.

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 de-

veloping, authorizing, issuing, and enforcing regulations

for surface mining and reclamation operations subject

to this Act should rest with the States... .” Jd. § 101(f),

30 U.S.C. § 1201(f). The federal government, of course,

“assist[s] the States in the development of State pro-

grams for surface coal mining and reclamation operations

which meet the requirements of the Act, and at the

same time, reflect local requirements and local environ-

mental and agricultural conditions ....” Jd. § 201(c)

(9), 830 U.S.C. § 1211(c) (9) (emphasis added). Accord,

57a

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. CopE Conc. & AD. NEws at 595. See id.

at 129 (“primary regulatory authority” delegated to

states with “a limited Federal oversight role” in the en-

forcement program), reprinted in [1977] U.S. CODE

Conc. & 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 min-

ing. 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 im state courts, id. § 526(e), 30

U.S.C. §1276(e), but the Secretary is not involved in

this process.” 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. Jd. §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.*®

7 While the bill that became the Surface Mining Act was pending,

Secretary of the Interior Ceci] 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., Ist Sess. 156 (1977) (letter from Sec’y Andrus to Rep.

Udall), reprinted in [1977] U.S. Cope Conc. & 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 “‘con-

sistent with the regulations” the Secretary has issue. 30 C.F.R.

§ 731.13(c) (1). The language of this provision, however, is decep-

58a

B.

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 au-

thorities, however, Congress wished to make sure that

the permit-granting entities would have adequate infor-

mation:

Experience has shown that without a through 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 tradition-

ally 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. CopE Conc. & AD. NEwSs 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

tively 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.

59a

it intended to give the Secretary the power to require

even more information when he is not the permit-grant-

ing authority. Indeed, in a system that, as one of its

central goals, vests “primary governmental responsibil-

ity” in the states, it is more reasonable to construe sec-

tions 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 eriteria of decision. The Act goes

into unusually great detail in stating what a permit ap-

plication 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 Con-

gress sought to vest in the states.* Like the camel stick-

® The Secretary argues that his construction of the Act deserves

considerable deference because his Department is the agericy Con-

gress has empowered to implement the Act. See, e.g., Whirlpool

Corp. V. Marshall, 100 S. Ct. 883, 890 (1980). Despite this gen-

eral rule, a court always remains free to reach its own conclusion

concerning what a particular statute means, FE. g., Skidmore v.

Swift, 323 U.S. 184, 139-40 (1944). In deciding how much defer-

ence 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 Con-

gress intended to give him the very discretion on which he now

60a

ing his nose in the tent, the Secretary easily could take

over entirely. We will not construe a statute “in a man-

ner which runs counter to the broad goals which Con-

gress intended it to effectuate.” FTC v. Fred Meyer, Inc.,

390 U.S. 341, 349 (1968).

C.

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 ap-

prove any particular state’s proposed program if it ap-

pears 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, if a state fails to

abide by its responsibilities under the Act, the Secretary

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£.J. du Pont de Nemours & Co.

v. Train, 480 U.S. 112 [9 ERC 1753] (1977). In du Pont, the

Court upheld the authority of the Administrator of the Environ-

mental 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 sub-

stantive 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.

6la

may enforce the Act against particular mines, see Act

§521 (a) (2), 30 U.S.C. §1271(a) (2), and, after fol-

lowing 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 moni-

toring success through the federal inspection system, see

id. § 517, 30 U.S.C. § 1267.°

IV.

Congress intended states to assume the “primary gov-

ernmental responsibility” for enforcing the Surface Min-

ing Act. To ensure states would live up to this duty, 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

authérity 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 Conc. Rec. S12350 (daily ed. Sept. 11,

1979), gives us some consolation, however, for we as-

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 regula-

tions must conform with the Secretary’s regulations. See note 3

62a

sume that Congress will correct our decision if it dis-

agrees 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 instruc-

tions that the regulations be remanded to the Secretary

for further consideration in light of this opinion.

It is so ordered.

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 prob-

lems. 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 encom-

passing power in the Secretary. Congress may well have

acted unreasonably and in an impractical manner in fix-

ing the date for original compliance. This has happened

on other occasions. Such mistaken time estimates, how-

ever, 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.

supra. The bill passed the Senate wn September 11, 1979. See 125

Conc. REc. 812387 (daily ed. Sept. 11, 1979). No action has been

taken in the House.

63a

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,’ 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 effectu-

ated by a construction which upholds the authority of

the Secretary to issue minimum information regulations.

I

The Surface Mining Act was enacted in the Fall of

1977 for the primary purpose of establishing a ‘“nation-

wide program to protect society and the environment

from the adverse effects of coal mining operations.” Sec-

tion 102(a). The Congress was “mindful of past failures

on the state level” (H.R. Rep. 95-281, 95th Cong., Ist

Sess., p. 85) and the fact that, “[wjhile 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., Ist Sess., pp. 49-51.

In order to deal with this problem a “national system”

was being created, to include administrative, environmen-

tal, 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 stand-

ards. Section 101(g); Union Carbide Corp. v. Andrus,

—— F.Supp. ——, 18 ERC 1481, 1492-96 (S.D. W.Va.

1979). The legislators expected “that Federal regulations

promulgated under the Act will fully implement the envi-

ronmental performance standards.” House Report p. 85.

1 Nevertheless, again like the majority, I think they are of some

assistance to us.

64a

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 argued * 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 regula-

tions promulgated by the Secretary of Interior. State

participation in this regulatory process is illusory

since the state would not have the flexibility to influ-

ence the substance.

Some of the members of the Senate Committee on En-

ergy and Natural Resources proposed a third option:

adoption by the states of the reclamation standards, the

“core provisions” of the bill, subject to federal monitor-

ing of the effectiveness of state enforcement. An amend-

ment embodying that option did not pass,® and it is not

unreasonable to interpret this congressional rejection of

the minority proposals as some evidence that the Con-

gress 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 em-

bodied in the legislation and to go a considerable distance

toward adopting the alternative Congress rejected.

II

Two types of statutory provisions enable the Depart-

ment of the Interior to carry out these general pur-

poses—the Secretary’s general rulemaking powers and

the more specific authority granted to him in Title V of

the Act.

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

3 Id.

65a

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 regula-

tions as may be necessary to carry out the purposes and

provisions of this Act.”

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 legis-

lation. Thus, in E. I. du Pont de Nemours & Co. Vv.

Train, 480 U.S. 112, 182 (1977), the Court upheld the

authority of the Environmental Protection Agency to issue

industry-wide regulations under the Federal Water Pol-

lution 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.” * See also, Mourning v. Fam-

ily 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 purpose,°

*The general statutory provisions here 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. Reli-

ance upon section 201(c) (2) of the Surface Mining Act as author-

ity 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), Na-

tional 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).

and where, again as here, the law involves an agency

charged with national responsibilities affecting an entire

industry.°

These general rules are not vitiated by the circum-

stances that, following the valid adoption of the regula-

tory program, implementation is left to the states. Cer-

tainly, the Secretary would have no power to promulgate

regulations which would interfere with state administra-

tion at the implementation stage. But during the pre-

approval period, in which the Secretary clearly was in-

tended to play a significant role, his general rulemaking

authority supports regulatory 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 es-

tablished 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 sub-

mitted 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 va-

riety of substantive standards and by adopting “rules

and regulations consistent with regulations issued by the

6E. 1. du Pont de Nemours, supra, 430 U.S. at 182-35; Thorpe

v. Housing Authority of Durham, 393 U.S. 277-81 (1969); Per-

mian Basin Area Rate Cases, supra, 390 U.S. at 776; National

Petroleum Refiners Association v. FTC, supra, 482 F.2d at 688-89.

67a

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 ap-

prove 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) explicitly and without any exception’ grants to

the Secretary the power to establish “procedures and re-

quirements for preparation, submission, and approval of

State programs.”

By their very terms, the regulations here at issue es-

tablish “requirements for preparation .. . of State pro-

grams” 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 restrict-

ing 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 pro-

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. [14 ERC 1816]

68a

gram. Such a narrow construction is quite unusual, *

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

be® conceptually that different from methodology ac-

ceptable to the court and to appellants. Appellants have

conceded the Secretary’s power to disapprove state pro-

grams 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 interpre-

tive 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, * the Secretary’s approach

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 US. at 472-74.

® 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 Au-

gust 3, 1979, and the district court granted 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 resub-

mitted. Twenty other state program submissions are currently un-

69a

constitutes a reasonable, indeed the only reasonable means

of practical implementation."

To have proceeded by a method of receiving state plans

and programs, returning them to the states for redraft-

ing 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 regula-

tory process. Instead, the Secretary’s regulations advise

the states what state programs would be acceptable, and

they further elaborate that in promulgating these pro-

grams the states will be free to make use of the “state

window” provisions of the regulations“ to take account

of local conditions. I believe that this method of pro-

ceeding was logical, fully consistent with the statute,

and lawful. National Petroleum Refiners Association Vv.

der review by the Secretary. It is difficult to visualize how these

states and the federal authorities are to proceed hereafter to imple-

ment the Act under the court’s directive.

11The 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 [10 ERC 1043] (1977).

12 Deviations from the regulations are not only allowed in theory

through “state window” provisions in the regulations, 30 C.F.R.

§ 731.18, but they have been permitted in practice; e.g., with re-

spect 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 stand-

ards leaving too little scope for state experimentation in violation

of the statute seems to be premature.

70a

FTC, supra, 428 F.2d at 683-84; Weinberger v. Bentex

Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973)."

IV

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 re-

gard, 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 con-

formity of state programs to regulations issued by the

Secretary of the Interior."

It is, of course, well established that the views of a

subsequent Congress form a hazardous basis for infer-

ring 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)." Be-

18 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 res-

taurants from discriminating Katzenbach v. McClung, 379 US.

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 Amend-

ment, to regulate surface coal mining with its enormous nation-

wide impact.

14The 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 Secre-

tary. S. Rep. No. 96-271, 96th Cong., Ist Sess. 4 (1979).

15 The House of Representatives has not passed any legislation

comparable to S. 1403.

Tla

yond 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 regula-

tions 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 col-

leagues have stated ** 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 submis-

sions.'7 Congressman Udall, principal sponsor of the

House bill which became the Surface Mining Act, like-

wise expressed his opposition to an amendment similar

to S. 1403, and it may be that his opposition was respon-

sible 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 leg-

islative 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 demon-

strated that the district court erred in finding that the

statute authorized the issuance of the Secretary’s

regulations.

16S. 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 com-

parability 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 considerable increase in litigation [and] ulti-

mately a new set of rules and regulations will be written by the

courts.” S. Rep. No. 96-271, pp. 33-34.

72a

The court relies on last year’s legislative development

only to the extent of indicating that, should its construc-

tion 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 con-

troversy before us, either in whole or in part, upon 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 con-

gressional 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.

73a

APPENDIX D

U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

IN RE PERMANENT SURFACE MINING REGULATION

LITIGATION, Civil Action No. 79-1144 (Consolidated)

February 26, 1980

MEMORANDUM

This complex case finds its nascency in the Surface

Mining Control and Reclamation Act of 1977 (“The Act;

SMCRA”). The Act required the Secretary of Interior

to develop first interim and later permanent regulations

to govern the surface mining of coal in the United States.

The interim regulatory program became effective in early

1978. In Re Surface Mining Regulation Litigation, 452

F.Supp. 327, 331 [11 ERC 1593] (D.C. 1978). The Sec-

retary released the final regulations on March 13, 1979.

Presently before the court are summary judgment mo-

tions challenging aspects of the permanent regulations.

The Act provides that challenges to the Secretary’s

regulations must be filed within 60 days of their release

in the United States District Court for the District of

Columbia. Section 526(a)(1) of the Act, 30 U.S.C.

§ 1276(a) (1). Various plaintiffs filed nine complaints

challenging the Secretary’s permanent regulatory pro-

gram. The court consolidated the actions.

Recognizing that the consolidated action raises ap-

proximately 100 challenges to the Secretary’s regulations,

the court instituted a split summary judgment briefing

schedule. This opinion’ addresses issues raised at the

1 The court previously ruled on the plaintiffs’ motion for prelim-

inary relief. The court granted the motions filed by the State of

Illinois and Commonwealth of Virginia to enjoin enforcement of

74a

November 16, 1979 hearing and in the first round briefs.

A subsequent opinion will address issues raised in the

second round briefs and at the January 18, 1980 hearing.

The six plaintiffs’ briefs* submitted in this round

challenge the power of the Secretary to promulate regula-

tions under the SMCRA. They also challenge approxi-

mately 50 regulations. This opinion upholds the broad

power of the Secretary to issue regulations pursuant to

the Act. The court does, however, remand various regula-

tions for arbitrariness, capriciousness, or inconsistency

with law.

Standard of Review

The standard of review incumbent upon this court is

not in dispute. Section 526(a) (1) of the Act, 30 U.S.C.

§ 1276, enunciates the standard. It expressly provides

that “[a]ny action subject to judicial review under this

subsection shall be affirmed unless the court concludes

that such action is arbitrary, capricious, or otherwise

inconsistent with law.” This standard is highly def-

erential and generally presumes the validity of the

agency action. Ethyl Corp. v. EPA, 541 F.2d 1, 34 [8

ERC 1785] (D.C. Cir.), cert. denied, 426 U.S. 941 [8

ERC 2200] (1976).

Despite this deference, the court must avoid rubber

stamping the agency’s regulations. Jd. Instead, the court

should search for, and find, a rational basis before up-

holding the agency’s actions. Bowman Transportation,

Inc. V. Arkansas-Best Freight System, Inc., 419 U.S. 281,

290 (1974) ; Ethyl Corp., supra, 541 F.2d at 28.

the August 3, 1979 deadline for submission of state programs.

The industry motions for preliminary relief were denied. Memo-

randum Opinion, August 21, 1979.

2 Briefs were submitted by: 1) the National Wildlife Federa-

tion; 2) the Pennsylvania Coal Mining Association; 3) the Na-

tional Coal Association; 4) Peabody Coal Company; 5) the State

of Illinois; and 6) the Commonwealth of Virginia.

75a

I. STATE PROGRAM

The states play a major role in the implementation of

the Surface Mining Control and Reclamation Act. Sec-

tion 503(a) of the Act, 30 U.S.C. § 1253(a), permits

each state to assume exclusive jurisdiction over surface

coal mining regulation. To achieve jurisdictional con-

trol, a state must submit a regulatory program to the

Secretary of Interior (“the Secretary”), and, further,

receive approval of the program within six months of

its submission. Section 503(b) of the Act, 30 U.S.C.

§ 1253(b). If a state fails to submit a program, or the

state program is disapproved, then the federal regula-

tions govern surface coal mining operations for the state.*

Section 504(a) of the Act, 30 U.S.C. § 1254.

A. Secretary’s Power to Establish Regulations

Approval of a state program depends, inter alia, upon

the states’ demonstration that its program is no less

stringent than the requirements set forth in the Act and

in the Secretary’s regulations. The stringency require-

ment emanates from 30 C.F.R. § 730.5, 44 Fed. Reg.

15324 (1979). This regulation makes clear that the

terms “consistent with” and “in accordance with” mean:

(a) With regard to the Act, the State laws and reg-

ulations are no less stringent than, meet the mini-

mum 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 regu-

lations of this Chapter.

% Disapproval of a State program does not automatically result

in imposition of the federal regulations. The Act allows a State

60 days to resubmit a revised program. Section 503(c) of the Act,

30 U.S.C. § 1253 (c).

76a

The consistency requirement of 30 C.F.R. § 730.5

forms the basis for a broad attack on the Secretary’s

regulations advanced by the State of Illinois, Illinois be-

lieves that a state program should not have to meet the

substantive requirements of the Secretary’s regulations.

Instead, according to Illinois, a state program need only

demonstrate consistency with the requirements of the

Act. Although this attack appears centered upon sub-

stantive performance standards,‘ Illinois extends the

argument to encompass the entire package of regulations

promulgated by the Secretary pursuant to the Act.®

Illinois raises several objections to conformity with

the Secretary’s regulations. These objections boil down

to a twofold argument: 1) the Secretary lacks a statu-

tory basis to require state program consistency with

the permanent regulations; and 2) therefore, 30 C.F.R.

§ 730.5, defining consistency as no less stringent than,

is arbitrary and inconsistent with the Act.

Contrary to the Illinois argument, the court finds that

the Act contains several unequivocal grants of rulemak-

ing authority vested in the Secretary of Interior. Per-

haps the most authoritative source fer determining

whether a state program must meet the requirements

of the Secretary’s regulations is the statutory definition

of a state program. Section 701(25) of the Act, 30

U.S.C. § 1291(25), defines a state program as “in ac-

cord with the requirements of this Act and regulations

‘Illinois brief at 21 (Secretary has arbitrarily extended strin-

gency concept “into performance standard context”).

5“With respect to the requirements of State Program consist-

ency with the Act itself, adopted in Section 730.5(a), Illinois

believes the Secretary has generally correctly concluded that the

State programs must meet minimum requirements of the Act.

Frankly, it seems to Illinois that that is all that is properly

needed to describe what is required of the States to obtain program

approval.” Illinois brief at 19.

77a

issued by the Secretary pursuant to this Act...” (em-

phasis added) In addition, Section 503(a) (7) of the Act,

30 U.S.C. § 1253(a) (7), requires that a state program

demonstrate a capability for carrying out “rules and

regulations consistent with regulations issued by the Sec-

retary pursuant to this Act.”* These statutory sections

clearly empower the Secretary to condition approval of

a state program upon its consistency with the Secretary’s

regulations.

Moreover, Section 201(c) (2) of the Act, 30 U.S.C.

§ 1211(c) (2), provides that “The Secretary, acting

through the Office, shall publish and promulgate such

yvules and regulations as may be necessary to carry out

the purposes and provisions of the Act.” An 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. Public Service Commission of

State of New York v. Federal Power Commission, 327

F.2d 893, 897 (D.C. Cir. 1964) ; see Permian Basin Area

Rate Cases, 390 U.S. 747, 780 (1968) ; American Truck-

ing Associations v. United States, 344 U.S. 298 (1953).

Sections 201(c) (2), 503(a) (7), and 701(25) provide

ample support for requiring the state regulatory program

to meet the substantive and procedural criteria of the

‘Illinois notes that Section 504(e) of the Act, 30 U.S.C.

§ 1254(e), requires a state program to meet the criteria enumer-

ated in Section 503(a)(1)-(6). The failure to include Section

503 (a) (7), according to Illinois, evinces Congressional intent that

state programs need not be consistent with federal regulatory

specifications.

The court recognizes the ambiguity raised by Section 504(e).

This ambiguity is easily resolved by resort to the Act’s clear defini-

tion of a state program. In defining a state program as “in accord

with the requirements of this Act and regulations issued by the

Secretary,” 30 U.S.C. § 1291(25), the Act leaves little room for

doubt that a state program must meet the minimum requirements

of both the Act and the Secretary’s regulations.

78a

Secretary’s regulations. Illinois attempts to deflate these

statutory grants of rulemaking authority by directing

the court’s attention to Section 501(b) of the Act, 30

U.S.C. §$1251(b) (1). It argues that Section 501(b)

allows the Secretary to establish only procedural regula-

tions with respect to state programs. It is true that this

section first refers to a “permanent regulatory proce-

dure.” But it goes on to state that the Secretary’s regu-

lations should also cover “procedures and requirements

for preparation, submission, and approval of State pro-

grams.” The conjunctive use of the word “and” between

these two phrases suggests that Congress intended the

Secretary to develop both procedural and substantive

regulations governing state program submission and

approval.

To the extent the statute is capable of duplicative in-

terpretations regarding consistency with the Secretary’s

regulations, the legislative history settles this controversy.

It clearly dictates the Secretary’s rulemaking authority

to cover minimum standards for state programs. The

House Report states:

The committee is mindful of the past failures on

the State level and thus bases it [sic] approval of

H.R. 25 on the expectation that Federal regulations

promulgated under the Act willfully implement the

environmental performance standards. Obviously,

the mere reproduction of the statutory environmen-

tal performance standards in the regulations would

be inadequate. (emphasis in original)

H.R. Rep. No. 94-896, 94th Cong., 2d Sess. 34 (1976).

The House unquestionably intended state programs to

incorporate, and be consistent with, more than merely

the Act’s requirements. The full reach of the Secretary’s

regulatory guidance is enunciated in the House report

of the next session. It states that the Secretary may

“promulgate regulations covering the full regulatory pro-

79a

gram including technical requirements, permit processor

[sic], and procedures for submission of State programs.”

H.R. Rep. No. 95-218, 95th Cong., Ist Sess. 62 (1977).

This view is confirmed by the Conference Committee

Report:

An approved State program requires (1) a State

law consistent with the Federal law and (2) State

rules and regulations consistent with the Secretary’s

regulations. The Conference Report retains the basic

principle that the federal laws and regulations are

minimum standards which may be exceeded by the

States. (emphasis added)

H.R. Rep. No. 95-498, 95th Cong., Ist Sess. 102 (1977).

These statements from the legislative history clearly

articulate Congressional intent that the Secretary should

promulgate regulations that constitute minimum stand-

ards for a state program.

B. Regulations Relating to Secretary’s Power To Require

Consistency

This court’s finding that the Secretary’s power extends

to regulations enacting substantive minimums for state

programs also necessitates upholding specific regulations

in the state program subchapter. For example, Illinois

attacks 30 C.F.R. § 730.5, 44 Fed. Reg. 15324 (1979).

This regulation, as explained above, requires that “State

laws and regulations are no less stringent than and meet

the applicable provisions of the regulations of this Chap-

ter.” Illinois claims the definition of “consistent with”

is arbitrary and inconsistent with the Act. Its argu-

ments are identical to those addressing the statutory au-

thority of the Secretary to prescribe minimum standards

for state programs. This court has resolved that the Act

and legislative history support the Secretary’s power to

prescribe procedural and substantive requirements as a

condition toward approval of a state program. 30 C.F.R.

80a

§ 730.5(b) is therefore consistent with the act and ra-

tional in its character.

Similarly, 30 C.F.R. § 732.15, 44 Fed. Reg. 15327-28

(1979), explicates the criteria for approval or disap-

proval of state programs. This regulation subsumes the

presumption that state programs must be consistent with

federal regulatory standards. Since the Act and the legis-

lative history allow the Secretary to prescribe such crit-

eria, this regulation is valid.

C. Other State Program Regulations

1. Publication of Less Stringent Standards

Illinois attacks the regulatory provision directing the

Secretary to publish in the Federal Register those sec-

tions of a state regulatory program less stringent than

the requirements of the Federal Act and the Secretary’s

regulations. 30 C.F.R. § 730.11, 44 Fed. Reg. 15324

(1979). Illinois believes this regulation allows the Secre-

tary to invalidate parts of a state program merely by

publishing the less stringent sections in the Federal

Register. This procedure, according to Illinois, violates

the Tenth Amendment; the Secretary may invalidate

State law without any rulemaking procedure or adjudica-

tory hearing.

Illinois misconstrues 30 C.F.R. § 730.11. Rather than

constituting the final action in voiding sections of a state

program, this regulation implements the first step that

triggers due process protections afforded to the states.

For example, 30 C.F.R. § 732.12, 44 Fed. Reg. 15326

(1979), provides for notice, comment, and public hearing,

before the Director of the OSM may recommend to the

Secretary that a program be approved in whole or in

part. 30 C.F.R. § 732.13(c), 44 Fed. Reg. 15327 (1979),

the final step in the approval process, requires the Sec-

retary to publish his decision in the Federal Register.

8la

Should the Secretary disapprove a state program, the

State receives 60 days to submit a revised program. Sec-

tion 503(c) of the Act, 30 U.S.C. § 12538(c). Hence, 30

C.F.R. § 780.11 is only the first step, in a process en-

compassing notice, comment, and hearing, that leads to

state program approval or disapproval.

2. State Window

Both Illinois and Virginia attack the “state window”

provision. 30 C.F.R. § 781.18, 44 Fed. Reg. 15324

(1979). The state window allows states to propose, as

part of their regulatory program, alternatives to the

standards and procedures adopted by the Secretary.

Ordinarily, as explained above, the Secretary’s regula-

tions constitute the minimum standards and procedures

that a state program must equal or surpass. The state

window provision allows deviation from the Secretary’s

regulations when necessitated by local requirements or

local environmental or agricultural conditions.

The salient portion of this regulation provides:

As part of its program submission or as an amend-

ment to an approved State program, a State may

request approval for alternatives to the provisions

of the regulations of this Chapter. For each alterna-

tive provision the State shall—

(c) Explain how and submit data . . . demon-

strating—

(1) that the proposed alternative will be in

accordance with the applicable provisions of the

Act and consistent with the regulations of this

Chapter and

(2) that the proposed alternative is necessary

because of local requirements or local environ-

mental or agricultural conditions.

82a

80 C.F.R. § 731.18 (emphasis added). Illinois objects to

the definitions of “consistent with” and “in accordance

with.” It repeats the arguments it employed attacking

the definitions of these terms at 30 C.F.R. § 730.5. The

court considered and rejected these arguments above.

Illinois further argues that the standard “capable of

achieving the same regulatory result” is superior to the

stringency standard adopted in the regulations. The

court believes the Secretary properly rejected this stand-

ard. The Secretary stated in the Preamble that as a

result standard is unacceptable because “regulatory re-

sult is difficult to define. Also there are many minimum

requirements ... that are clearly not results.” ’ 44 Fed.

Reg. 14952 (1979). Moreover, if Illinois is to prevail

in its alternative standard, it must show that the

“stringency” test is inconsistent with the Act or arbi-

trary or capricious. It has failed to make such a demon-

stration to this court.

Both Virginia and Illinois object to the word “neces-

sary” as found in 30 C.F.R. §781.18(c) (2). 44 Fed.

Reg. 15324 (1979). Virginia directs the court’s attention

to Section 201(c) (9) of the Act, 80 U.S.C. § 1211(c) (9).

This statutory provision commands the Secretary to:

assist the States in the development of State pro-

grams ... which meet the requirements of the Act,

and, at the same time, reflect local requirements and

local environmental and agricultural conditions (em-

phasis added).

Virginia alleges the word “reflect” directs the Secre-

tary to accept any state alternative insofar as the alter-

native reflects local conditions. An alternative based on

reflection of, rather than necessity of, local conditions

7 Procedural matters, such as the public participation, notice,

and hearing provisions, provide examples of requirements that fail

to qualify as results.

88a

constitutes a lower standard of cause imposed upon the

States.

Virginia misperceives both the meaning of “reflect”,

employed in Section 201(c) (9) of the Act, and the word

“necessity”, found in 30 C.F.R. § 731.13. The word “re-

flect” addresses the requirement that only local condi-

tions can justify a deviation from federal substantive

requirements. Contrary to Virginia’s contention, the

word “necessity” fails to contemplate a showing that

the state alternative be essential or imperative. Instead,

it implies that local conditions should reflect a necessary

basis for deviation from the federal standard. There-

fore, a state need only demonstrate that: 1) local condi-

tions make it difficult to meet the federal standard; 2)

the state alternative relates to local conditions; and 3)

the alternative is no less stringent than the federal regu-

lation.

Illinois believes that requiring any showing of local

need as a condition for alternatives to the Secretary’s

regulations is inconsistent with the Act. This objection

is without merit. The court has already found that a

state program must meet the standards of both the Act

and the Secretary’s regulations. Moreover, Section 201

(c) (9) of the Act intends that state programs reflect

local conditions. It is therefore reasonable for the Secre-

tary, and consistent with the Act, to require that devia-

tion from the Secretary’s regulations be based on condi-

tions attendant to local need.

8. Citizen Suits

80 C.F.R. § 732.15(b) (10), 44 Fed. Reg. 15827

(1979), requires a state program to provide for “public

participation.” This regulation, however, fails to eluci-

date a definition of public participation. Instead, the

Secretary discusses the term at 44 Fed. Reg. 14965

(1979). The preamble makes clear that a provision for

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citizen suits in state court is a necessary element of

public participation.

Section 520 of the Act, 30 U.S.C. § 1270, provides for

citizen suits in federal district court. Virginia believes

that since Section 520 fails to refer to state court suits,

Congress intended that private citizens seek redress only

through federal court litigation.

The court finds the Act and the legislative history sup-

port the Secretary’s command that state programs in-

clude a provision for citizen suits in state court. Section

521(d) of the Act, 30 U.S.C. § 1271(d), provides:

As a condition of approval of any State program

submitted . . . the enforcement provisions thereof

shall, at a minimum, incorporate sanctions no less

stringent than those set forth in this section, and

shall contain the same or similar procedural re-

quirements relating thereto.

One of these procedural requirements, delineated at Sec-

tion 520(a) of the Act, concerns private citizen suits.

The legislative history confirms this finding. The Sen-

ate Report urges “increased opportunity for citizens’ to

participate in the enforcement program...” S. Rep.

No. 95-128, 95th Cong., Ist Sess. 90 (1977). Representa-

tive Udall, a primary sponsor of the Act, describes state

programs as including “enforcement, administrative and

judicial review; public notice and hearing; citizen

suits .. .” 123 Cong. Rec. H7585 (daily ed. July 21,

1977). Moreover, Senator Allen, an opponent of the Act,

reiterated that “the State Program developed under §.7

would be a completely designed Federal Program in every

respect including . . . standing to sue... .” 123 Cong.

Rec. 88024 (daily ed. May 19, 1977).

85a

Finally, upholding the citizen suit provision is con-

sistent with the purposes of the SMCRA. Section 102(i)

of the Act, 30 U.S.C. § 1202(i), urges public participa-

tion in developing, revising, and enforcing federal and

state programs.

4. Citizen Access

80 C.F.R. § 786.27(b) (2), 44 Fed. Reg. 15381, re-

quires that private persons be allowed to accompany

inspectors when a private citizen complaint prompted

the inspection. The statutory basis for citizen access is

found at Section 521(a) of the Act, 30 U.S.C. § 1271 (a)

(1). This section states, in relevant part:

When the Federal inspection results from informa-

tion provided to the Secretary by any person, the

Secretary shall notify such person when the Federal

inspection is proposed to be carried out and such

person shall be allowed to accompany the inspector

during the inspection.

Virginia argues th

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