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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0660%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1113

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0660%3A4. Public record. Not legal advice.