Reply Brief — Bragg v. West Virginia Coal Ass'n

In the | CLER

Supreme Court of the Hrrited States

| Supreme Cour! US

FILED

&

PATRICIA BRAGG, et al.,

Petitioners,

v.

WEST VIRGINIA COAL ASSOCIATION, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

REPLY BRIEF FOR PETITIONERS

Joseph M. Lovett

Mountain St. Justice, Inc.

922 Quarrier St.

Suite 525

Charleston, WV 25301

(304) 344-3144

Patrick C. McGinley

737 South Hills Drive

Morgantown, WV 26505

(304) 292-9822

James M. Hecker

(Counsel of Record)

Arthur H. Bryant

Trial Lawyers for Public Justice, P.C.

Suite 800

1717 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 797-8600

Suzanne M. Weise

P.O. Box 343

Morgantown, WV 26507

(304) 292-9822

Counsel for Petitioners

Table of Contents

1. There Is a Direct Conflict with Ex parte Young and

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2. The Question Presented Is of Exceptional Importance . 2

3. There Is a Direct Conflict Concerning the Federal

Enforceability of State Programs Under SMCRA ... 4

4. There Is a Direct Conflict Concerning the Federal

Enforceability of State Programs Under Other Federal

Environmental Statutes .............0ceeeeeeees 6

Table of Authorities

Cases:

Antco, Inc. v. Dodge Fuel Corp., 550 S.E.2d 622 (W.Va.

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Arkansas v. Oklahoma, 503 U.S. 91 (1992) .......... 7-8

Bragg v. Robertson, 54 F. Supp.2d 635 (S.D.W.Va. 1999) . 4

Canestraro v. Faerber, 374 S.E.2d 319 (W.Va. S.Ct.

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DK Excavating, Inc. v. Miano, 549 S.E.2d 280 (W.Va.

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Ex parte Young, 209 U.S. 123 (1908) ...........+4-. 1-3

Harmon Industries v. Browner, 191 F.3d 894 (8" Cir.

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Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997) ...... l

In Re Permanent Surface Mining Regulation Litigation,

653 F.2d 514 (D.C. Cir.) (en banc), cert. denied,

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Molinary v. Powell Mountain Coal Co., Inc., 125 F.3d 231

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Powder River Basin Resource Council v. Babbitt, 54 F.3d

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U.S. v. Elias, 269 F.3d 1003 (9 Cir. 2001) ............. 9

U.S. v. Flanagan, 126 F. Supp.2d 1284 (C.D. Cal. 2000) .. 9

U.S. v. MacDonald & Watson Waste Oil Co., 933 F.2d 35

St PR Pee os TE ere Trae eo eee 9

U.S. v. Murphy Oil U.S.A., Inc., 143 F. Supp.2d 1054

af BR 0 Peer ere 9

U.S. v. Power Engineering Co., 125 F. Supp.2d 1050 (D.

Colo. 2000), appeal pending, No. 01-1217 (10 Cir.) ... 9

Constitution, Statutes and Regulations:

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The United States agrees with Petitioners that the court of

appeals’ decision “rests on a fundamental misunderstanding of

SMCRA\” and “is incorrect.” U.S. Opp. at 13, 21. Nevertheless,

the United States asserts that this Court’s review of the Fourth

Circuit’s decision is not warranted because, although that decision

is in “tension” with other federal appellate decisions, no other court

has decided the “precise issue.” /d. at 12-13. Even if the United

States has properly defined the issue, certiorari is warranted here

because of the Fourth Circuit’s plain brea’: with Ex parte Young

and Coeur d'Alene and the exceptional importance of the legal

issue at stake. Moreover, contrary to the United States’ assertion,

there is a direct conflict between the decision below and other

federal circuit and state high court decisions interpreting SMCRA.

In addition, the United States has defined the issue too narrowly,

painting over the fundamental incompatibility of the Fourth Circuit’s

decision with other decisions concerning the federal enforceability

of federal statutes based on cooperative federalism.

1. There Is a Direct Conflict with Ex parte Young and

Coeur d’Alene.

The United States agrees that Petitioners’ claims arise under

federal law and “are cognizable in federal court under Ex parte

Young.” U.S. Opp. at 21. By rejecting those claims, the Fourth

Circuit’s decision conflicts with Ex parte Young, 209 U.S. 123

(1908). See Pet. 14-17. By basing that rejection, in part, on the

availability of a state court remedy, the Fourth Circuit’s decision

also conflicts with Jdaho v. Coeur d'Alene Tribe, 521 U.S. 261

(1997). Both the United States and Industry Respondents concede

the latter conflict by failing to address it. The State Respondent

asserts that there is no conflict with Coeur d'Alene because the

Fourth Circuit was merely restating the truism that Ex parte Young

is inapplicable when a state court is enforcing purely state law. State

Opp. at 17. However, that is not what the Fourth Circuit did.

ee

Instead, it relied on the availability of a state court remedy to protect

“the federal interest in maintaining the State’s compliance with its

own program.” App. 24a (emphasis added). In doing so, it relied

on the 2-vote minority opinion in Coeur d ‘Alene for the proposition

that, because West Virginia’s “law specifically provides for its own

enforcement in a State forum, the concerns that gave rise to the

exception of Ex parte Young evaporate.” App. 25a. That position

was rejected by seven Justices in Coeur d'Alene. 521 U.S. at 292-

93 (Ex parte Young “permit[s] federal actions to proceed even

though a state forum was open to hear the plaintiff's claims”)

(O’Connor, Scalia, and Thomas, JJ., concurring) (emphasis in

original); id. at 315-16 (the “notion that availability of a state forum

should have some bearing on the applicability of Ex parte Young

is thus as much as odds with precedent as with basic jurisdictional

principles”) (Souter, Stevens, Ginsburg, and Breyer, JJ, dissenting).

2. The Question Presented Is of Exceptional Importance.

The United States’ brief in opposition confirms that this case is of

critical importance. That brief acknowledges that the Fourth Circuit

has issued a fundamentally wrong opinion on an important question

of law with a major impact on enforcement of a critical federal

program in the federal circuit most affected by surface coal mining.

The government's exclusive focus on the absence of a direct conflict

with the precise holding of the Fourth Circuit ignores the fact that

certiorari is properly granted where “a court of appeals has decided

an important question of federal law that has not been, but should

be, settled by this Court.” Rule 10(c). However narrowly one

defines the relevant issue—and we believe the government's

definition is superficial and cramped—this case is sufficiently

important to justify this Court’s attention at this time.

The United States’ nine-page attack on the Fourth Circuit’s

2

decision proves the point. The government confirms that that

decision disrupts federal-government and private-citizen

enforcement of an important federal statute that directly affects the

public interest. The United States describes its “substantial, ongoing

responsibility” to enforce SMCRA, including authority to conduct

inspections, issue notices of violations, and even take over federal

enforcement of a state program. U.S. Opp. at 15-16. The United

States also confirms that “the function of the citizen suit provision at

issue here is to ensure that the State does properly enforce its

approved program.” /d. at 20-21. The Fourth Circuit’s decision

that these federal provisions “drop out” after program approval

eliminates these enforcement mechanisms, leaving the states in the

Fourth Circuit (including West Virginia-the nation’s second largest

coal-producing state) with no effective federal oversight.

The practical impact of the Fourth Circuit’s holding is not limited

to the Eleventh Amendment immunity of state actors under

SMCRA. Instead, it extends to the broader issue of whether a

federally approved state program under a federal statute is federal

law. As aresult, that decision will not just affect SMCRA citizen

suits against state officials under Ex parte Young. It will equally

affect citizen suits against private companies (no federal question,

hence no federal jurisdiction), federal government actions against

private violators (again, no federal question jurisdiction unless the

government has revoked approval of the state program), and

federal government actions against states (same). Moreover, as we

show in Part 4 below, the Fourth Circuit’s decision goes so far that

it jeopardizes the federal enforceability of not just SMCRA, but

other federal environmental statutes (the Clean Air Act (CAA),

Clean Water Act (CWA), and Resource Recovery and

Conservation Act (RCRA)), because they share similar federal

characteristics and SMCRA has the strongest federal character.

Furthermore, the Fourth Circuit’s decision vacated an injunction

3

that would have prevented the continuing obliteration of hundreds

of miles of streams in West Virginia. The U.S. Fish and Wildlife

Service has found that “the loss of these streams and their

associated forests may have ecosystem-wide implications.” J.A.

281. As District Judge Haden stated in this case, the damage

caused by filling streams with millions of tons of waste rock “cannot

be regarded as anything but permanent and irreversible.” Bragg v.

Robertson, 54 F. Supp.2d 635, 646 (S.D.W.Va. 1999). If state

officials cannot be compelled through citizen suits to enforce the

environmental protections mandated in their state SMCRA

programs, it could threaten a major portion of the streams and

forests in Appalachia. Thus, the impact of this case on federal

enforcement and environmental quality is a sufficient reason by itself

to grant the petition for a writ of certiorari in this case.

3. There Is a Direct Conflict Concerning the Federal

Enforceability of State Programs Under SMCRA.

The United States asserts that there is no conflict over “whether

the Eleventh Amendment bars aSMCRA citizen suit against a state

official alleging the violations of provisions of an approved state

plan.” U.S. Opp. at 21. This assertion disregards the fundamental

disagreement between the Fourth Circuit and other federal and state

appellate courts concerning the enforceability of federal SMCRA

law after a state program is approved. The Fourth Circuit held that

federal and state regulatory authority under SMCRA are “mutually

exclusive,” and that once a State has received federal approval of

its state program, state law becomes the “sole operative law,” and

federal regulatory authority “drop[s]} out.” App. 20a-2 1a.

The D.C. Circuit reached the opposite conclusion when it

reviewed the final federal regulations implementing SMCRA. That

court spent four pages of its decision analyzing the allocation of

4

power between the federal government and the states. Jn Re

Permanent Surface Mining Regulation Litigation, 653 F.2d 514,

518-21 (D.C. Cir.) (en banc), cert. denied, 454 U.S. 822 (1981).

It concluded that the federal government retains the authority to

enforce an approved state program, and that this “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.” Id. at 519 (emphasis added). The Fourth Circuit’s

holding is incompatible with this conclusion.

The Fourth Circuit’s decision also conflicts with three decisions

ofthe West Virginia Supreme Court of Appeals. In each decision,

that court held that “the requirements of the federal act [SMCRA]

continue to have force and effect after the state program is

approved.” Canestraro v. Faerber, 374 S.E.2d319 (W.Va. S.Ct.

1988). Accord, DK Excavating, Inc. v. Miano, 549 S.E.2d 280

(W.Va. S.Ct. 2001); Antco, Inc. v. Dodge Fuel Corp., 550

S.E.2d 622 (W.Va. S.Ct. 2001). However, the Fourth Circuit’s

decision would dictate the opposite result, since it held that

SMCRA has no effect as federal law after program approval.

The Fourth Circuit’s holding would have similarly dictated a

different result in Powder River Basin Resource Council v.

Babbitt, 54 F.3d 1477 (10™ Cir. 1995). In that case, the plaintiff

brought a citizen suit against a Wyoming state official under §

1270(a)(2) of SMCRA. The Tenth Circuit held that the Eleventh

Amendment did not bar the district court from entering a

declaratory judgment that the attorney fee provisions in Wyoming’s

approved state plan violated SMCRA. /d. at 1483. However,

under the Fourth Circuit’s ruling, that same suit would have to be

dismissed because Wyoming was administering state law, and

federal SMCRA law would have “drop[ped] out.”

The Fourth Circuit’s decision is plainly incompatible with these

decisions and that conflict warrants the Cowrt's revsew.

4. There Is a Direct Conflict Concerning the Federal

Enforceability of State Programs Under Other Federal

Environmental Statutes.

The United States admits that the Fourth Circuit’s decision “is,

indeed, in tension” with the many appellate decisions that recognize

the federal character of federally approved state programs under

“cooperative federalism” statutes. U.S. Opp. at 12-13, 23 n.6.

However, by framing the “precise issue” narrowly as arising only

under SMCRA, the United States understates the unprecedented

breadth of the Fourth Circuit’s decision, and thereby artificially

minimizes the true conflict over a broader issue.

In fact, state programs under SMCRA have a stronger federal

character than state programs under other federal environmental

statutes. By rejecting the federal enforceability of a federal

environmental statute with a strong federal character, the decision

below runs headlong into the many federal appellate decisions that

have held that state programs under other federal environmental

statutes are federally enforceable, even though these programs have

a weaker federal character. Pet. at 26-28; U.S. Opp. at 23 n.6.

Four characteristics of approved state SMCRA programs show

that they have a strong, ifnot the strongest, federal character. First,

SMCRA authorizes the federal government and citizens to enforce

approved state programs against regulated entities such as

permittees. 30 U.S.C. §§ 1270, 1271. The Clean Water Act,

Clean Air Act, and Resource Conservation and Recovery Act also

authorize such enforcement. 33 U.S.C. §§ 1319, 1365; 42 U.S.C.

§§ 7413, 7604; 42 U.S.C. §§ 6928, 6972. However, SMCRA is

the only federal statute that allows citizens to sue the state

regulatory authority itself in federal court for its failure to perform the

nondiscretionary duties in its state program. 30 U.S.C. §

1270(a)(2). It is also the only federal environmental statute that

6

expressly provides that the availability of state judicial review shall

not affect the right to bring a federal citizen suit. 30 U.S.C. §

1276(e). The CWA, CAA, and RCRA do not contain any

comparable provisions, and therefore have a weaker federal

character. If the Fourth Circuit is right that these strong federal

provisions do not create federal enforceability under SMCRA, then

its decision necessarily is in conflict with the numerous federal

decisions upholding the federal enforceability of the CWA, CAA,

and RCRA, where those provisions are absent.

Second, SMCRA expressly provides that primacy states must

comply with their approved state programs. 30 U.S.C. §

1260(b)(1). As the United States admits, that statute “mandates that

state officials adhere to that requirement, and that federal law is

violated ifa state official fails to do so.” U.S. Opp. at 14 (emphasis

in original). Again, SMCRA is the only federal environmental statute

to contain such a provision. The CWA, CAA, and RCRA do not

contain any comparable provisions, and therefore have a weaker

federal character. If the Fourth Circuit is right that this federal

mandate does not create federal enforceability under SMCRA, then

its decision necessarily is in conflict with the numerous federal

decisions upholding the federal enforceability of the CWA, CAA,

and RCRA, where those mandates are absent.

Third, as the United States admits (U.S. Opp. at 3), approved

state SMCRA programs are codified as federal law in the Code of

Federal Regulations. 30 C.F.R. §§ 900.11, 900.12(a). In that

respect, they have at least as strong, if not a stronger, federal

character than State Implementation Plans under the CAA and state

water quality standards under the CWA, which are not codified, but

are incorporated by reference into federal regulations. 40 C.F.R. §

52.02 (CAA); 40 C.F.R. § 122.4(d) (CWA). None of the

respondents has successfully distinguished this case from Arkansas

v. Oklahoma, 503 U.S. 91, 110 (1992), where this Court held that

7

this CWA regulation made those state standards “‘part of the federal

law of water pollution control.” Since the SMCRA regulation is

equal to or stronger than the CWA regulation, the Fourth Circuit’s

decision necessarily conflicts with Arkansas.

Fourth, state SMCRA programs do not become effective either

initially, or through amendments, unless they are approved by the

federal government. 30 U.S.C. §§ 1253(a); 30 C.F.R. § 732.17(g);

U.S. Opp. 3. In that respect, they are the same as approved state

programs under the CWA, CAA, and RCRA. 33 U.S.C. §

1342(b); 42 U.S.C. §§ 7410, 7412(1); 42 U.S.C. §§ 6926(b),

6947(a). By holding that this characteristic is insufficient to create

federal enforceability, the Fourth Circuit’s decision jeopardizes the

federal enforceability of these other statutes as well as SMCRA.

Respondents, and the Fourth Circuit, rely on a fifth

characteristic—the “exclusive jurisdiction” clause-to nullify all of

these other four characteristics and thereby to eviscerate the entire

federal character of SMCRA. However, as the United States

explains, that clause “merely confirm{s] that ‘[a]s long as the state

properly enforces its approved program, it is the exclusive ‘on the

scene’ regulatory authority.’” U.S. Opp. at 20 (quoting /n re Per-

manent Surface Mining Regulation Litigation, 653 F.2d at 519).

Thus, primacy states administer approved programs, but citizens

and the federal government have continuing authority to invoke the

jurisdiction of the federal courts to ensure that states comply with

their responsibilities under those programs. /d. at 20-21.

The structure of SMCRA supports this conclusion, because the

administration and enforcement of state programs are addressed in

separate sections. Section 1253 refers to the state’s “exclusive

jurisdiction over the regulation” of surface mining in a state, but

Sections 1270 and 1271 separately authorize enforcement of that

regulatory program by citizens and the federal government. 30

U.S.C. §§ 1253(a), 1270, 1271. As aresult, as the Fourth Circuit

8

En a a

itself held in Molinary v. Powell Mountain Coal Co., Inc., 125

F.3d 231, 236 (4" Cir. 1997), “[e]xclusive regulatory jurisdiction

simply does not encompass exclusive adjudicatory jurisdiction”

(emphasis added). Congress did not assign both the administration

and enforcement of the state program exclusively to primacy states.

Thus, the “exclusive jurisdiction” language does not give SMCRA

a less federal character than other environmental statutes.'

Nevertheless, the United States argues that this language about

“exclusive jurisdiction” is “the crucial feature distinguishing SMCRA

from other cooperative-federalism statutes” and provides sufficient

reason by itself to eliminate any conflict between the Fourth

Circuit’s decision and decisions by other appellate courts. /d. at 24.

This argument is flatly inconsistent with the United States’ earlier

insistence that this “basic premise” of the Fourth Circuit’s decision

“rests on a fundamental misunderstanding of SMCRA.” /d. at 13.

‘This confusion over the meaning of terms like “exclusive jurisdiction” is

not unique to SMCRA. RCRA provides that an approved state program

operates “in lieu of” a federal program. 42 U.S.C. § 6926(b). This language

has generated a similar conflict among the federal courts. The Eighth Circuit

has held that this language “reveals a congressional intent for an authorized

State program to supplant the federal hazardous waste program in all

respects including enforcement.” Harmon Industries v. Browner, 191 F.3d

894, 899 (8" Cir. 1999). In contrast, the First and Ninth Circuits and several

district courts have reached the opposite conclusion that administration and

enforcement of state RCRA programs are not inexorably intertwined, and

that the United States retains its authority to enforce those programs in

federal court. U.S. v. Elias, 269 F.3d 1003, 1009-13 (9" Cir. 2001); U.S. v.

MacDonald & Watson Waste Oil Co., 933 F.2d 35, 44 (1* Cir. 1991); U.S. v.

Murphy Oil U.S.A., Inc., 143 F. Supp.2d 1054, 1114-17(W.D. Wis. 2001); U.S.

v. Flanagan, 126 F. Supp.2d 1284, 1286-91 (C.D. Cal. 2000); U.S. v. Power

Engineering Co., 125 F. Supp.2d 1050, 1058-61 (D. Colo. 2000), appeal

pending, No. 01-1217 (10 Cir.). Thus, a grant of certiorari here would likely

resolve, or at least provide authoritative guidance on, the proper

interpretation of RCRA’s “in lieu of” language.

9

The United States cannot have it both ways. It cannot argue that the

basic premise of the court of appeals’ decision is wrong, but tha:

same mistaken premise completely resolves the conflict with other

federal court decisions.

By rejecting the federal enforceability ofa federal environmental

statute with a strong (if not the strongest) federal character, the

Fourth Circuit’s decision has consequences that extend far beyond

SMCRA, and simultaneously undermines the federal enforceability

of other federal environmental statutes with a weaker federal

character. Review in this case can therefore resolve this conflict

concerning the federal enforceability of federal environmental

statutes based on cooperative federalism.

ee

For the reasons stated above and in the petition, the petition for

a writ of certiorari should be granted.

Respectfully submitted,

Joseph M. Lovett James M. Hecker

Mountain St. Justice, Inc. (Counsel of Record)

922 Quarrier St., Arthur H. Bryant

Suite 525 Trial Lawyers for Public Justice, P.C.

Charleston, WV 25301 1717 Massachusetts Ave., N.W. #800

(304) 344-3144 Washington, D.C. 20036

(202) 797-8600

Patrick C. McGinley Suzanne M. Weise

737 South Hills Drive _—~P.O.. Box 343

Morgantown, WV 26505 Morgantown, WV 26507

(304) 292-9822 (304) 292-9822

Counsel for Petitioners

10