# Opposition Brief — Bragg v. West Virginia Coal Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0660%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2002 - **Citation:** 534 U.S. 1113 ## Text =>) © No. 01-619 jn Che Supreme Court of the Untled States PATRICIA BRAGG, et al., Petitioners, Wa WEST VIRGINIA COAL ASSOCIATION, et al., Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF IN OPPOSITION OF WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION Benjamin L. Bailey Counsel of Record Brian A. Glasser Jennifer S. Fahey BAILEY & GLASSER, LLP 227 Capitol Street Charleston, West Virginia 25301 (304) 345-6555 Counsel for Respondent West Virginia Department of Environmental Protection THE LEX GROUP ¢ 1108 East Main Street ¢ Suite 1400 ¢ Richmond, VA 23219 (804) 644-4419 @ (800) 856-4419 Fax: (804) 644-3660 ¢ www.thelexgroup.com My See 33 U.S.C. § 1342(d). No such interlocking, permit-by-permit authority exists under SMCRA. So the Fourth Circuit's comparison of the mutually exclusive State or Federal regulation created by SMCRA to the more federal character of the CWA is supported by the plain language of both statutes. Moreover, Arkansas v. Oklahoma did not hold that the state water laws, applied interstate, are automatically incorporated into federal law, as Petitioners contend. Arkansas_v. Oklahoma held that CWA regulations “effectively incorporate” state law, and acknowledges the “federal character” of state pollution standards under the CWA. 503 U.S. at 110. But Arkansas v. Oklahoma involved a federal permit for a Fayetteville, Arkansas water treatment 5 Although the Administrator may waive the notice requirements under 33 U.S.C. § 1342(d), another subsection, 33 U.S.C. § 1342(b)(5) still requires notification of the EPA when the discharging state fails to adopt a recommendation from a neighbor state that will be affected by the discharge. See, 33 U.S.C. § 1342(e). 18 plant that discharged into a stream flowing into Oklahoma. The question in Arkansas v. Oklahoma was which State's regulations - Arkansas’ or Oklahoma’s - EPA had the authority to apply. 503 U.S. at 104-05. The interstate flow of water in Arkansas v. Oklahoma federalized the issue, giving EPA the discretionary authority - but not necessarily the obligation - to apply a downstream state’s water quality standards in its federal permit. This holding stands in stark contrast to the localized nature of surface coal mining and the state, not federal, permit in this case. Petitioners also cite EPA v. California for the proposition that discharge permits issued pursuant to State permit programs under the CWA are federally enforceable, without noting the critical fact that permits for federal facilities were the underlying issue in that case. (Petition at 26) (citing 426 U.S. 200, 224-25 (1976)). The question in that case was not whether state water regulations became federal law, but rather was “whether federal installations discharging water pollutants in a state with a federally approved permit program are to secure their permits from the state, or from the [EPA].” 426 U.S. at 201-02. Under the CWA, Federal installations are required to “comply with Federal, State, intrastate, and _ local [pollution] requirements.” 33 U.S.C. § 1323(a). This Court held that federal facilities need federal permits, and are not required to obtain state NPDES permits under the Federal Water Poilution Control Act Amendment of 1972.6 EPA _v. . Interesting!y, SMCRA reaches a parallel substantive conclusion, creating a Federal program for surface mining on federal lands, directing OSM to include at a minimum the requirements of the approved State program, and allowing cooperative agreements for State regulation if the Secretary of the Interior so desires. 30 U.S.C. § 1273. This section of SMCRA further underscores the mutually exclusive nature of SMCRA’s regulatory construct, even on federal lands. 19 California, 426 U.S. at 211, 227 (applying Hancock v. Train, 426 US. 167 (1976) (issued on the same day as EPA v. California)). Because the CWA specifically applies state standards to federal facilities, the holding in EPA v. California does not support Petitioners’ argument that state mining regulations are somehow generally incorporated into SMCRA and applied to non-federal lands. 2. The Fourth Circuit’s Opinion is Consistent with Decisions of Other Circuit Courts of Appeals. Similarly, the Petitioners’ recitation of Circuit Courts of Appeals cases applying the CWA, the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act (CAA) are inapposite. (Petition at 26-28.) None of these statutes offer “exclusive jurisdiction” to the states, as does SMCRA, and none of them arose under citizens’ suits provisions drawn as narrowly as 30 U.S.C. § 1270(a)(2). Nor do any of them address the same Eleventh Amendment issue resolved by the Fourth Circuit in this case. ° CWA Cases Plaintiffs invoke one other CWA case, NRDC v. California Department _of Transportation, but that case alleged that a State agency violated its permit. 96 F.3d 420 (9% Cir. 1996). The permit “required [the California Department of Transportation] to control polluted stormwater runoff from roadways and maintenance yards in Southern California.” Id. at 421. The Ninth Circuit held that the CWA and this Court's prior holdings specifically abrogated Eleventh Amendment protection for suits against state agencies as permit holders. Id. at 422 (citing Pennhurst and Ex Parte Young). NRDC v. California differs from the instant case, because the Director of WVDEP has been sued as a regulator not as a permit holder. See, Pennhurst 465 U.S. at 106 (holding “it is difficult to think of a greater 20 intrusion on State sovereignty than when a federal court instructs State officials on how to conform their conduct to State Law.”) (The Fourth Circuit also cited this holding, 248 F.3d at 296.) Nor does the SMCRA citizen suit provision at issue, 30 U.S.C. § 1270(a)(2), contain the same language which the Ninth Circuit found sufficient to create jurisdiction over California as a permit holder. Id. at 424 (citing Seminole Tribe of Florida _v. Florida, 517 US. 44 (1996)).’ ° RCRA Cases Petitioners also distort the import of the principal RCRA case they cite. The question in Ashoff v. City of Ukiah, 130 F.3d 409 (9% Cir. 1997), was whether RCRA “authorizes citizen suits in- federal courts claiming only violations of state standards that exceed the federal criteria.” 130 F.3d at 410. The Ninth Circuit found that RCRA did not authorize citizen suits based on state standards that exceed the federal criteria. Id. at 412. The Ninth Circuit's analysis turned on the language of RCRA’s citizen suit provision. This provision is broad, and it permits any person to sue any other person (including government agencies to the extent permitted by the Eleventh Amendment) “who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition or order which has become effective pursuant to this chapter.” Id. (citing 42 U.S.C. § 6972(a)(1)(A)). This “pursuant to” language is broader than SMCRA’s separate citizen suit provision for regulatory authorities, which is limited to alleged failures “to perform any act or duty under this chapter which is not discretionary.” 30 US.C. § 1270(a)(2). Thus, while the federal district courts listed in the Petition’s footnote 9 have differed over whether state programs have “become It is, however, similar to 30 U.S.C. § 1270(a)(1). 21 effective pursuant to” RCRA, that argument is not available to Petitioners in this case. Even if WVSCMRA could somehow be conceived as enacted “pursuant to” SMCRA, it is not SMCRA itself. Nothing in SMCRA explicitly adopts, incorporates, or transmogrifies state regulations into federal law. Moreover, the Ashoff court, near the end of its opinion, discusses the desirability of a narrow reading of RCRA on policy grounds, to avoid “inappropriate interference with state authority.” 130 F.3d at 413. Similar policy concerns support the Fourth Circuit’s construction of SMCRA, WVSCMRA, and the citizen suit provisions of both. ° Clean Air Act Cases Air, like water, moves freely across state lines, and the Clean Air Act, like the CWA, therefore recognizes a more prominent role for the federal government than does SMCRA with its focus on land and coal reserves. For example, the Clear Air Act's citizen suit provision differs from SMCRA’s. It permits citizen suits against the EPA Administrator, but not state officials, for violations of non- discretionary duties. 42 U.S.C. § 7604(a)(2). Violations of SIPs (State Implementation Plans) are made specifically enforceable by the plain language of the CAA’s citizen suit provision, which permits suits for violations of emission standards or limitations. 42 U.S.C. § 7604(a)(1). The CAA defines “emission standard or limitation” to include schedules or timetables for compliance and “any other standard, limitation or schedule ... under any applicable state implementation plan.” 42 U.S.C. § 7604(f). All this differs dramatically from SMCRA and its limited citizen suit provision against state regulators. Other differences separate the CAA from the opinion below. The first CAA case Petitioners cite, Espinosa _v. Roswell Tower, Inc., 32 F.3d 491 (10 Cir. 1994), does not even arise under the CAA’s citizen suit provision, but rather 22 involves a suit by New Mexico’s State regulator under 42 U.S.C. 7412. The other cases involve plain statutory constructions of 42 U.S.C. § 7604 and its specific inclusion of SIP enforcement in its citizen suit provision. Not one of the CAA cases cited by Petitioners even discusses the Eleventh Amendment, Ex Parte Young or a state’s dignity interest. Indeed, although New Jersey and New York were named defendants in two of the cases, neither participated in the appeals cited by plaintiffs. None of the New York defendants appeared in the district court or the Circuit Court in Friends of the Earth v. Carey, 535 F.2d 165, 168 n.1 (2d Cir. 1976). Likewise, in American Lung Association v. Kean, the Second Circuit never addressed the issue of whether the Eleventh Amendment barred this citizen suit under the CAA against New Jersey. 871 F.2d 319 (3d Cir. 1989). Indeed, New Jersey did not join in the appeal, contest the district court’s order, nor did it assert sovereign immunity before the district court. Kean, 871 F.2d at 321; 670 F.Supp. 1285, 1889-90 (D.N.J. 1987). The appeal was taken instead by intervenor trade associations who wanted more time to comply with the district court's order. 871 F.2d at 322-23. New Jersey was apparently “satisfied that it was given enough time to come up with a reasonable proposal.” Id. at 328. In short, none of the CAA cases Petitioners cite are applicable, because SIPs are specifically made enforceable by the CAA’s citizen suit provision and because none of them involved an active state defendant or discuss the Eleventh Amendment issues presented in this case. Thus, the only Constitutional obstacle to asserting jurisdiction that these Courts faced is Article Iil’s “arising under” language, a much lower barrier than the Eleventh Amendment question this Court faces. The cases Petitioners cite actually illustrate the wisdom of the Fourth Circuit's careful scrutiny and construction of SMCRA, as well as the contrasts drawn by the Fourth Circuit with the Clean Water Act, RCRA and Clean Air Act. Each of those statutes voluntarily applies or 23 references state standards in specific situations; none of them do so in the wholesale manner argued by Petitioners. Because of these different statutory schemes, none of the cases Petitioners cite illustrate any differences among the various Circuit Courts that would warrant a grant of certiorari. ° SMCRA Cases No other Circuit Courts of Appeal have addressed the same SMCRA issues presented by this case. The United States Court of Appeals for the Third Circuit, however, has pending before it Pennsylvania Federation of Sportsmen's Clubs, Ir:. v. Seif, No. 01-1683. That case raises the exact questions that were raised in Bragg. Unless and until the Third Circuit or some highest state court disagrees with the Fourth Circuit’s analysis, there is no reason to believe it might be wrong. Indeed, the degision below was unanimous and despite a petition for rehearing en banc raising the exact same claims raised in the instant petition for certiorari, not a single judge in the entire Fourth Circuit voted to rehear the case. As Petitioners note, the Fourth and Third Circuits have addressed the different jurisdictional language in 30 U.S.C. § 1270(a)(1) and (f), but those sections are not at issue in this case. The Fourth Circuit's decision in Molinary v. Powell Mountain Coal Co., Inc., 125 F.3d 231 (4% Cir. 1997) did not address whether state surface mining programs are federal law within the purview of Ex Parte Young. Molinary was a citizen suit against a coal operator, brought under 30 U.S.C. § 1270(f). That section creates an action for damages against “any operator,” not any regulatory authority, for violations of “any rule, regulation, order or permit issued pursuant to this chapter,” but not for violations of SMCRA itself. Molinary did not even discuss the Eleventh Amendment. The Third Circuit also construed 30 U.S.C. § 1270(a)(1) and (f) in Haydo v. Amerikohl Mining, 24 Inc., and concluded that SMCRA’s grant of “exclusive jurisdiction” precluded federal jurisdiction over suits against coal operators for alleged violations of State programs. 830 F.2d 494, 498 (3d Cir. 1987). Haydo, like Molinary, did not involve a claim against a state regulator, did not involve the narrower jurisdictional language of 30 U.S.C. § 1270(a)(2) and did not reach the Ex Parte Young issue. Accordingly, neither of these cases creates a conflict which justifies certiorari. II. No Compelling Need for This Court to Review The Work of the Court of Appeals Exists Because It Has Not Been Criticized by the Highest State Court. This Court need not review the work of the Court of Appeals because it has not been criticized by the highest state court. Petitioners argue that there is some inconsistency between the Fourth Circuit's holding in Bragg and a series of West Virginia Supreme Court cases. Canestraro_v. Faerber, 374 S.E.2d 319 (W.Va. 1988); DK Excavating, Inc. v. Miano, 549 S.E.2d 280 (W.Va. 2001); and Antco, Inc. v. Dodge Fuel Corp., 550 S.E.2d 622 (W.Va. 2001) (collectively, “the Canestraro line”). That assertion is wrong. The essential holding in Bragg is that West Virginia's mining statutes and regulations are state law, not federal law. The Canestraro line deals with a different question: How is state mining law to be applied or construed when the states’ laws or regulations are less stringent than the minimum federal standards? Unlike many states and many reported opinions, the law of West Virginia is expressed in syllabus points which the State’s Constitution requires the state’s Supreme Court of Appeals to write, as well as in the opinions themselves. W.Va. Const. art. VIII, § 4. The syllabus points and the opinions must be read together. See State v. Franklin, 139 W.Va. 43, 57 (1953) (citing Koblegard v. Hale, 60 W.Va. 37 (1906)) (holding that “the syllabus of the case must, of 25 course, be read in light of the opinion.”*) The first syllabus point in Canestraro states the holding as follows: “When a provision of the West Virginia Surface Coal Mining and Reclamation Act is inconsistent with federal requirements in the Surface Mining Control and Reclamation Act, the state act must be read in a way consistent with the federal act. 374 S.E.2d 319, Syllabus pt. 1 (citations omitted). The Canestraro case involved a notice and public access provision in WVSCMRA that was approved by OSM, but found by the West Virginia Supreme Court of Appeals to be less stringent than the applicable federal standards. Id. at 321. DK Excavating was an appeal from a state administrative action, in which an excavating company relied on a state mining statute enacted by the state’s legislature but not approved by OSM because it was less stringent than SMCRA. 549 S.E.2d at 283. WVDEP, mindful of its obligations under the approved program, argued that it could not apply the enacted, but disapproved statute. Id. Antco held that a violation of a state permit constitutes prima facia negligence, and follows Canestraro. 550 S.E.2d 622, Syllabus Pt. 11. The Canestraro line simply establishes that West Virginia law will be construed consistently with federal minimum standards when the State’s program is less stringent. These cases have no significance for the instant case, which does not involve a state statute or regulation 8 Another case from the same year, Citizens National Bank v. Burdette, 61 W.Va. 635 (1907), interpreted the West Virginia Constitution to make the syllabus “the real decision over the opinion.” 61 W.Va. at 636. The better, modern practice requires considering both opinions and syllabi. 26 that is less stringent than its federal counterparts. As the district court explained, the state buffer zone rule is “similar [to the federal buffer zone rule, 30 C.F.R. § 816.59] but requires additional specific findings to be made by the Director before buffer zone incursion may be authorized.” (App. at 59a.) Because it requires more specific findings, the state regulation at issue in the instant case was, if anything, more stringent than its federal counterpart. Since the District Court’s opinion, the buffer zone regulation has been amended to copy the federal regulation, and no longer contains the seven specific findings the District Court commanded the Director to make. 38 W.Va. Code St. R. § 2- 9.2.1. For these reasons, the Canestraro line does not apply. More importantly, however, the Canestraro line justifies Congress’ confidence in the states as expressed in SMCRA. It also justifies the Fourth Circuit's holding and respect for the Eleventh Amendment's protection of West Virginia’s dignity interest. Each case originated in West Virginia’s state courts or state administrative processes. Each case ultimately asked the state’s highest court to construe state law and reconcile it with federal minimum standards. In each case, that construction incorporated and adopted federal minimum standards into state law when the state law was found to be less stringent. In DK Excavating, the state regulatory authority reached the same conclusion. Considering all the syllabus points and opinions, a fair reading of the Canestraro line is that West Virginia's court was construing and applying state law, in recognition of SMCRA’s plan for cooperative federalism. Indeed, the DK Excavating opinion, handed down during the pendency of this matter, makes it clear that West Virginia's highest court understood it was construing and applying state, not federal law. “As DEP observes, this Court has on multiple occasions recognized that our state mining laws have to be 27 interpreted consistent with federal law.” DK Excavating, 549 S.E.2d at 285. Further, the court observed: It is noted that because the Legislature has elected to provide for, and the Executive has opted to apply for and has obtained approval of this state plan, subsequent amendments to the plan are rendered ineffective unless and until approved by OSM. It is for the Legislature and the Executive, not this Court, to determine when, and if, it is preferable to revert to federal regulation of this state’s surface coal activities. Id. at 285 n.11. Regardless of whether the Canestraro line construes state law to incorporate minimum federal standards or directly applies federal law, nothing in Bragg involved less stringent state laws. Thus, nothing in Bragg supports Petitioner's extrapolation that Bragg demands that the state court follow “exclusively state law, regardless of whether federal law is more stringent.” (Petition at 30.) The conclusion which should be drawn from the Canestraro line is that West Virginia’s executive, legislative, and judicial branches understand their exclusive jurisdiction and understand their responsibility to maintain minimum national standards within the state’s boundaries. These cases thus create no confusion about the “validity and content of West Virginia’s state mining program,” as Petitioners argue. (Petition at 30.) The state’s program applies as written. Questions about it belong in state forums. Persons who specifically believe WVSCMRA to be less stringent than SMCRA, or who generally take issue with its application by WVDEP, have more than adequate redress in state administrative and judicial processes. If, as 28 a last resort, they believe federal regulation should displace all or part of the State programs, a detailed, federal remedial scheme allows OSM to act. See 30 U.S.C. §§ 1267, 1271. Indeed, SMCRA allows concerned citizens to sue OSM in federal court, as the West Virginia Highlands Conservancy, a Petitioner herein, has recently done, when concerns exist about OSM’s oversight. W.Va. Highlands Conservancy v Norton, 147 F.Supp. 2d 474 (S.D.W.Va. 2001).? Access to the state’s legislative and executive branches is also available, of course, to any concerned citizen. These avenues for redress strike the balance of cooperative federalism intended by SMCRA - respecting State sovereignty and exclusive State jurisdiction while vindicating the federal interest in enforcing minimum national standards. ’ Norton, from the same district court which handled this underlying dispute, also involved claims against WVDEP which were dismissed in light of the Fourth Circuit's opinion in this case. Id. 29 CONCLUSION Because the Fourth Circuit opinion relies on a simple statutory construction, and is not inconsistent with opinions of this court, other federal courts or the West Virginia Supreme Court of Appeals, certiorari should not be granted. Respectfully submitted, DIRECTOR, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Benjamin L. Bailey (WVSB#200) Counsel of Record Brian A. Glasser (WVSB#6597) Jennifer S. Fahey BAILEY & GLASSER, LLP 227 Capitol Street Charleston, West Virginia 25301 (304) 345-6555 Telephone (304) 342-1110 Facsimile —_ { --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0660%3A3. Public record. Not legal advice.