Opinion for the Court filed by Chief Judge WALD, Circuit Judge RUTH BADER GINSBURG, and Circuit Judge SILBERMAN.
TABLE OF CONTENTS
PageI. INTRODUCTION ................................................................ 701 II. STANDING .................................................................... 703 A. The History of the Standing Issue in this Case ........................... 703 B. A Brief Overview of Standing Doctrine .................................... 703 C. NWF's Standing on Particular Issues ...................................... 706 1. Issues where the Secetary has Eliminated Minimum National Environmental Standards (Four Issues) ............................................. 706 2. Issues where the Challenge to Standing Focuses on the Adequacy of Affidavits (Fourteen Issues) ......................................... 709 a. Federal Lands ..................................................... 711 b. Off-Site Facilities ............................................... 712 c. Host Soils ........................................................ 713 d. Prime Farmland Lakes .............................................. 713 e. Support Facilities on Prime Farmland .............................. 714 f. Variances from Original Contours .................................. 714 g. Submerged Highwalls ............................................... 715 h. Actual Grazing on Land ............................................ 715 D. Conclusion ............................................................... 716 III. MERITS ...................................................................... 716 A. Prime Farmland and Pastureland Issues .................................... 716 1. Revegetation Success Standards for Prime Farmland ..................... 716 2. Revegetation Success Standards for Grazing and Pastureland ............ 718 3. Exemptions from Performance Standards for Prime Farmlands ............. 719 a. Construction of Water Impoundments on Prime Farmland ............... 719 b. Exemption for Prime Farmland Affected by Coal Preparation Plants, Support Facilities, and Roads ...................................... 722 B. Bonding to Assure Reclamation of Land Affected by Mine Operations ........ 723 1. Incremental and Phased Bonding ........................................ 724 2. Bonding for Damage Caused by Subsidence of Land Overlying Underground Mines ............................................................... 726 C. Regulatory Guidance ...................................................... 729 1. Alluvial Valley Floors ................................................ 729 2. Mine Waste ............................................................ 731 3. Backfilling and Grading ............................................... 734 a. Contemporaneous Reclamation ........................................ 735 b. Thin and Thick Overburden .......................................... 736 c. Terraces ........................................................... 737
Page D. Residual Issues .......................................................... 739 1. Damage Caused by Subsidence of Land Overlying Underground Mines ...... 739 2. Reshaping Cut and Fill Slopes (Roads and Underground Mines) .......... 741 3. Jurisdiction Over Processing and Support Facilities .................. 742 4. Alluvial Valley Floors Performancce Standards ........................ 746 5. Substantial Legal and Financial Commitment ........................... 747 E. Residual Issues II ....................................................... 748 1. Continually-Created Valid Existing Rights ............................ 748 2. Values Incompatible with Surface Mining .............................. 751 3. Replacement of Damaged Water Supplies by Operators of Underground Mines............................................................... 753 a. The Unplain Meaning of Section 717(b).............................. 753 b. The "Puzzling Contradiction" of Section 508(a)(13)'s Permitting Requirements ..................................................... 754 4. Exemption from Water Replacement Requirements for Holders of Senior Water Rights ........................................................ 756 5. Cumulative Hydrologic Assessment — What is "Anticipated Mining"?. 757 6. Elimination of Underwater Highwalls .................................. 759 7. Temporary (but Long-Term) Storage of Top Soil ........................ 760 8. Authority to Grant Variance from AOC Requirements .................... 761 9. Jurisdiction Over Non-Erosional Aspects of Air Quality ............... 764 10. Use of Proxmimity as a Factor in Determining Jurisdiction Over Support Facilities .......................................................... 765 11. Delegability of Secretary's Authority Over Federal Land Mining Permits 766 IV. CONCLUSION .................................................................. 768
WALD, Chief Judge, GINSBURG, RUTH BADER, Circuit Judge, and SILBERMAN, Circuit Judge:
The Surface Mining Control and Reclamation Act of 1977, Pub.L. No. 95-87, 91 Stat. 445 (codified as amended at 30 U.S.C. §§ 1201 et seq.) ("the Surface Mining Act," "the Act," or "SMCRA"), emerged from prolonged deliberations that reach back to hearings and the introduction of legislation in the 90th Congress.
The Act can be enforced at either the state or federal level. After an interim period of direct federal regulation, states are authorized by the Act to assume a major regulatory role. A state wishing to take on that responsibility must submit a proposed regulatory program to the Secretary of the Interior ("Secretary"), who determines whether the state has the capability to implement SMCRA consistent with federal standards. With the Secretary's approval, the state then assumes primary responsibility for SMCRA enforcement and rulemaking.
The Act has been a fertile source of litigation since its inception. In 1977, numerous
Buffeted by politics and the courts, the interpretation of SMCRA has been an epic in itself. In 1979 Secretary Andrus promulgated permanent program surface mining regulations which prompted a myriad of legal challenges. In a series of three opinions, the district court decided over 100 issues raised by the various parties. In re Permanent Surface Mining Regulation Litigation I, 13 E.R.C. 1586 (D.D.C.1979) (preliminary injunction); In re Permanent Surface Mining Regulation Litigation I, 14 E.R.C. 1083 (D.D.C.1979) ("PSMRL I (Round I)"); In re Permanent Surface Mining Regulation Litigation I, 19 E.R.C. 1477 (D.D.C.1980) ("PSMRL I (Round II)"). One aspect of those decisions, a challenge by the coal industry to the Secretary's rulemaking authority to require applicants for a permit to submit additional information not specifically enumerated in the Act, was eventually rejected on appeal by this court. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C.Cir.) (en banc), cert. denied, 454 U.S. 822, 102 S.Ct. 106, 70 L.Ed.2d 93 (1981) ("PSMRL I"). Many other issues on appeal from the district court were overtaken by events. The presidential election of 1980 resulted in a change in administration mining policy. In 1981, while appeals relating to the 1979 regulations were pending, the new Secretary of the Interior, James Watt, announced his intention to repromulgate the permanent SMCRA program regulations. The entire case was accordingly remanded to the Secretary.
In his reconsideration of the 1979 regulations, Secretary Watt specifically asked commentators to focus on ways to increase the flexibility of federal supervision of state regulatory programs; and more generally, he requested suggestions on how to revise "excessive, burdensome, or counter-productive" regulations. States, citizen groups, and representatives of the coal industry responded with a range of proposals: increase the flexibility of regulations to permit case-by-case implementation, take into account the differences between coal producing regions, eliminate unreasonable difficulties and expense in complying with the regulations, and improve the enforcement program. In 1983, the Secretary announced revised regulations that, inter alia, granted both state regulators and coal mine operators greater discretion in complying with the general requirements of the statute. The Secretary also retained many of the 1979 regulations.
Many of the new "flexible" regulations were challenged by the National Wildlife Federation and other environmental groups (collectively referred to as "NWF").
At the outset, we confront the challenges posed by Industry to the standing of the National Wildlife Federation, appellants here. For reasons to follow, we conclude that district court Judge Flannery correctly found that NWF has standing to challenge each of the regulations in question. We proceed to discuss the merits of each challenge.
A. The History of the Standing Issue in This Case
Standing has emerged as a prime issue in this appeal. Industry raised standing objections in the district court, but Judge Flannery initially made no fact findings on the subject. On appeal, however, Industry interposed a broad challenge to NWF's standing, reaching each of the 21 regulations contested by the environmental organizations. Specifically, Industry argued that NWF had failed to allege a constitutionally adequate injury with respect to each regulation. In the case of several regulations, Industry maintained that NWF had failed to demonstrate a sufficiently strong chain of causation between the challenged regulation and the alleged harm.
After oral argument, this court remanded the record to Judge Flannery to make additional fact findings on standing. We instructed the district court to receive affidavits "demonstrating specific injury" to members of the plaintiff environmental organizations. NWF thereupon filed with the district court 70 affidavits, amounting to over 1,600 pages.
On August 10, 1987, Judge Flannery issued a memorandum opinion concluding that NWF's affidavits had alleged sufficiently specific injuries with regard to each regulation challenged by NWF to satisfy Article III of the Constitution. See In re Permanent Surface Mining Regulation Litigation, No. 79-1144, mem. op. (D.D.C. Aug. 10, 1987) (hereinafter "Findings on Standing").
In light of the vast expanse of issues before us in this appeal, we pause first to sort out which issues are, and are not, subject to standing challenges. NWF has not contested, nor could it seriously contest, the standing of Industry to challenge those regulations that Industry has assailed. Thus, as to issues on which Industry is pitted against the Secretary, no standing challenge is before this court.
Additionally, in the aftermath of Judge Flannery's memorandum opinion on standing, Industry concedes that NWF has standing to challenge three of the 21 regulations NWF has contested. These regulations involve: (1) the replacement of the water supply of property owners whose supply has been damaged by underground coal mining; (2) the measures coal operators must take to control "fugitive dust"; and (3) the requirement that regulatory authorities determine the probable cumulative impact of all anticipated mining prior to its inception. See Brief for Industry at 25, 27, 43 (conceding standing on these issues).
B. A Brief Overview of Standing Doctrine
Standing jurisprudence is a highly case-specific endeavor, turning on the precise
We begin our standing inquiry by recalling some principles of special relevance to this case. Standing involves both limitations imposed by the "case or controversy" requirement of Article III of the Constitution and "prudential limits on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1974).
The first of these elements, that a party "has been or will in fact be perceptibly harmed by the challenged agency action," see United States v. SCRAP, 412 U.S. at 688, 93 S.Ct. at 2416, is the core of standing. see Daughtrey v. Carter, 584 F.2d 1050, 1056 (D.C.Cir.1978) (characterizing injury requirement as "first and foremost element of standing"). The requisite injury cannot be to merely "abstract" interests, see Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Simon, 426 U.S. at 40, 96 S.Ct. at 1925; Sierra Club, 405 U.S. at 739-40, 92 S.Ct. at 1368-69. Nevertheless, the "distinct and palpable injury," see Warth v. Seldin, 442 U.S. at 501, 95 S.Ct. at 2206, suffered by a party need not be tangible or great: an "identifiable trifle" will do. See United States v. SCRAP, 412 U.S. at 689 n. 14, 93 S.Ct. at 2417 n. 14.
Injury to aesthetic or recreational interests, as well as to more traditional economic interests, will support a claim of standing. See, e.g., Sierra Club, 405 U.S. at 734, 92 S.Ct. at 1366 ("Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process."); Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 576-78 (D.C.Cir.1980) ("concerned citizens" professing interest in the preservation of the environment held, under
The second prong of the standing inquiry is causation: the injury alleged must be "fairly traceable" to the action under attack. The Supreme Court's decisions on this point show that mere indirectness of causation is no barrier to standing, and thus, an injury worked on one party by another through a third party intermediary may suffice. See, e.g., Meese v. Keene, ___ U.S. ___, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) (would-be distributor has standing to challenge Justice Department's characterization of film as "political propaganda" under foreign agents' registration act because label could hurt his chances of reelection to state senate); United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405. As we stated in Autolog Corp. v. Regan, 731 F.2d 25 (D.C.Cir.1984):
731 F.2d at 31 (citations omitted) (quoting Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 717 (D.C.Cir.1977)). Other prominent cases in which the "fairly traceable" requirement was found satisfied despite a relatively attenuated chain of causation are Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), in which the Supreme Court held that an environmental group had standing to challenge Price-Anderson Act's limitation on utility liability in event of nuclear accident, and Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986), in which the Court held that a whale-watching group had standing to challenge the failure of the Secretary of Commerce to cite Japan for violations of international limitations on harvesting of whales.
The final prong of current constitutional standing analysis is redressability. Redressability and causation analyses often replicate one another, particularly in cases where, as here, the relief requested is merely the cessation of illegal conduct. See Allen v. Wright, 468 U.S. at 753 n. 19, 104 S.Ct. at 3325-26 n. 19; see also Haitian Refugee Center v. Gracey, 809 F.2d 794, 801 (D.C.Cir.1987) (describing "traceability" and "redressability" requirements as "closely related"); cf. California Ass'n of the Physically Handicapped v. Federal Communications Comm'n, 778 F.2d 823, 825 n. 7 (D.C.Cir.1985) (explaining the distinction between the two requirements). We note, however, that a party seeking judicial relief need not show to a certainty that a favorable decision will redress his injury. A mere likelihood will do. Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81, 98 S.Ct. 2733, 2743, 57 L.Ed.2d 750 (1978) (Powell, J.); International Ladies Garment Workers' Union v. Donovan, 722 F.2d 795, 811 n. 27 (D.C.Cir.1983), cert. denied, sub. nom. Breen v. International Ladies Garment Workers' Union, 469 U.S. 820, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984). As we stated in Community Nutrition
With these guiding principles in mind, we turn to Industry's 18 remaining standing challenges to NWF's various claims. For the sake of coherence we have classified those challenges into two broad groups, each of which raises analytically similar issues.
C. NWF's Standing on Particular Issues
1. Issues Where the Secretary Has Eliminated Minimum National Environmental Standards (Four Issues)
The first cluster of standing challenges includes four instances in which NWF has challenged Secretary Watt's elimination of minimum national standards governing various aspects of surface mining. These regulations involve (1) the contemporaneous reclamation of mined land; (2) the design of earth "terraces" on restored land; (3) the exemption from the "approximate original contour" requirement of lands featuring unusually thick or thin overburden; and (4) the information required from those seeking permits for activities that could unsettle alluvial valley floors.
The first NWF issue in this cluster stems from the requirement imposed by § 515(b)(16) that mine operators reclaim land "as contemporaneously as practicable [to the] mining operations." In 1979, then-Secretary Andrus promulgated specific "time and distance" standards for such backfilling and grading, see 30 C.F.R. § 816.101, but four years later, Secretary Watt repealed those standards, concluding that "`contemporaneous reclamation' is a relative term which must be interpreted by each State on the basis of the mining conditions in its territory." 48 FED.REG. 23357-58 (1983).
The second issue relates to the requirement of § 515(b)(3) that land be restored to its "approximate original contour." The regulations adopted in 1979 attached numerical benchmarks to this broad requirement, requiring terraces to be built with bench widths less than 20 feet and slopes between benches at less than a 50 degree angle. Secretary Watt's revisions, however, abandoned maximum bench widths and outslope angles, leaving to regulatory authorities the decision on a case-by-case basis whether to approve given terrace characteristics.
The third issue involves the exemption in § 515(b)(3) from the requirement that lands be returned to their approximate original contour. The 1979 regulations provided numerical specifications for grants of a variance from the approximate original contour requirement; but in 1983, Secretary Watt eliminated the numerical standards, allowing variances whenever the mine operator asserts that spoil is either "insufficient" or "more than sufficient" to restore land to its approximate original contour. 30 C.F.R. § 816.104-105 (1986).
The fourth issue involves the information required of those seeking permits for operations that might affect alluvial valley floors. Section 515(b)(10)(F) requires surface coal mining operations to "preserve throughout the mining and reclamation process the essentially hydrologic functions of alluvial valley floors in the arid and semi-arid areas of the country." The original
With regard to each of these issues, NWF alleges that it suffers at the very least a threat of injury from the Secretary's deletion of the regulatory minimums. In response, Industry suggests that NWF has merely alleged a statutory violation without proffering a viable claim of specific injury. See Motion to Remand Certain Issues With Direction to Dismiss for Want of Jurisdiction and Ripeness (hereinafter "Brief for Industry"), at 12-15. Insofar as the first prong of the standing requirement, injury in fact, is concerned, we, however, are satisfied that NWF's affidavits now provide sufficient allegations of personalized injury to satisfy the Sierra Club and SCRAP standards for "injury in fact" in environmental cases. These affidavits provide sufficient details describing threatened injuries. Typically, NWF's affiants live in communities where surface mining operations have occurred. In addition to alleging past environmental degradation, these affiants describe in substantial detail the injuries they fear from ongoing and future mining operations. Those affiants addressing the contemporaneous reclamation, terracing and thick and thin overburden requirements allege that the new regulations permit greater deviance from the goal of approximating the original contour of the mined land, a major environmental goal of the Act. Those affiants addressing the deletion of specific information requirements regarding alluvial valley floors in permit applications allege that this policy will create an increased danger of degrading water supplies in the West.
Industry suggests that these affidavits are inadequate for failure to track the sometimes hypertechnical language of the statute, see, e.g., Brief for Industry at 23 ("Neither [affiant] so much as mentions ... the thick overburden exemption"), or for failure to describe with precision the harms they fear. See, e.g., id. at 21 ("[n]either points to any specific mine or terrace, and each offers only a general and irrelevant observation that their aesthetic enjoyment would be diminished...."). We disagree. Unyielding insistence on parroting the arcane technicalities of the law or regulations, however, would turn the standing requirement into a barrier impeding all but mining engineers from challenging this legislation. NWF's allegations of injury in these affidavits, far from being "an ingenious academic exercise in the conceivable," see SCRAP, 412 U.S. at 688, 93 S.Ct. at 2416, are the allegations of real people personally concerned about constitutionally-sufficient environmental, recreational, or aesthetic injuries. In view of the specificity of the numerous allegations affiants make concerning threatened deviations from reclaiming land to its original contour, those allegations are reasonably read to address the technical regulations which implement that important requirement. We therefore wholly concur in Judge Flannery's evaluation of the adequacy of these allegations to establish injury in fact with respect to each of these regulations. See Findings on Standing at 6-12, 25-26.
The more difficult issue regarding these four regulations is whether NWF has satisfactorily established that the injuries of which it complains are "fairly traceable" to the challenged action. Industry contends in each instance that the injuries cited in NWF's affidavits are merely speculative. Specifically, it makes three distinct arguments. First, Industry argues that because individual states may choose to adhere to the initial regulatory minimums set forth in 1979, any fear of laxer standards is premature. Second, it argues that the new, more nebulous regulations could still be interpreted so as to conform to, or even exceed, the previous minimum standards. Third, it maintains that threatened injury "can arise only after a government agency makes a future discretionary decision that
We disagree with each of these arguments. At the outset, we note that Industry's contentions as to the speculative nature of NWF's challenge relate as much to ripeness as they do to causation; we therefore address each of Industry's contentions in turn with an eye to ripeness as well as to standing doctrine.
Industry's first argument — that it is conceivable that individual states will continue to apply the older, 1979 regulations with their precise minimum standards — does not stand up. With regard to each regulation, NWF has identified at least one plaintiff living in a state directly governed by Secretary Watt's deletion of the 1979 standards. Specifically, NWF has identified at least one of its members who lives in a state in which the federal government enforces surface-mining standards because the lands in question are federal ones, or because the state has not accepted the federal invitation to assume responsibility for enforcement. Although NWF's 70 affidavits offer a number of examples upon which standing might be found on these four issues, we need only note that several plaintiffs identified by NWF live in Tennessee, a state in which the federal government enforces surface-mining standards. Theses affiants allege threatened injuries stemming from the relaxation of the federal government's approximate original contour standards. See, e.g., Hollis Aff.; Little Aff.; Miller Aff.; Smiddy Aff.; S. Williams Aff. Similarly, Neil McBride, also a Tennessee resident, alleges injuries from the diminution of permit information required by the federal government for activities that could harm alluvial valley floors. See McBride Aff.
Thus, the first argument put forth by Industry — that some cooperating states may choose to retain or even exceed the 1979 standards — is irrelevant, for NWF has identified plaintiffs directly governed by the Secretary's new regulations.
As its second causation/ripeness argument, Industry repeatedly asserts that the newer regulations remain susceptible to interpretive constructions in which they would be every bit as stringent as the more specific 1979 standards, see, e.g., Brief for Industry at 18-20, 21, 22, 33. It strains credulity, however, to suggest that the Secretary, in abandoning minimum standards, sought to encourage mining concerns to exceed the previous regulatory floors. Mining concerns were, after all, free to undertake extra precautions under the 1979 regulations; the paramount impact of the 1983 deletions is to position Industry to do less rather than more to restore mined land.
Although we do not read the Act to require that every statutory prescription be fleshed out by numerical standards, see, e.g., infra section III-C-3, we do regard Congress' admonitions — notably those expressed in the House Report — regarding the need for specific regulations as supporting the inference that a causal connection exists between deletion of regulatory specifics and adverse environmental effects. And while Congress cannot create standing on its own, it can provide legislative assessments which courts can credit in making standing determinations. See Autolog Corp. v. Regan, 731 F.2d 25, 31 (D.C.Cir.1984) ("we must give great weight to
Industry's third contention is that NWF cannot challenge the Secretary's relaxed regulations until a decision unfavorable to plaintiffs is actually made under them. In support of this contention, Industry cites a string of cases from the Supreme Court and this circuit purportedly saying that the existence of an intervening discretionary authority blocks standing and/or ripeness. See Brief for Industry at 11 n. 11. Industry's cases, however, arise in a very different context. They all involve parties seeking to overturn rules or enactments before such enactments have been enforced against them personally. See, e.g., Brown v. Hotel Employees, 468 U.S. 491, 104 S.Ct. 3179, 82 L.Ed.2d 373 (1984); Pacific Gas & Elec. v. Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983); International Longshoremen's & Warehousemen's Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954); Cabais v. Egger, 690 F.2d 234 (D.C.Cir.1982). By contrast, NWF here challenges currently operative rules that require no act of administrative discretion to affect environmentalist plaintiffs. Cf. Japan Whaling Ass'n, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (standing found where harm to whalewatchers from failure to sanction Japan for whale-harvesting could ensue without any further governmental action).
In any event, Industry's argument overlooks fundamental principles of ripeness analysis. Insofar as the constitutional dimensions of the ripeness requirement are concerned, a clear case or controversy exists here, given the significant likelihood of injury to NWF's members in states, such as Tennessee, where the federal government is the direct regulatory authority. See, e.g., Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) ("[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement"). Nor do the prudential components of the ripeness requirement impede NWF's claim, in light of Congress' express intent that those suits challenging the surface mining regulations be judged under "the broadest standing requirements enunciated by the U.S. Supreme Court." See H.R.REP. No. 218, 95th Cong., 1st Sess. 90 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 622.
For the foregoing reasons, we regard the threat to NWF's members as "sufficiently real and immediate to show an existing controversy," see Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 2784, 73 L.Ed.2d 534 (1982), and we therefore find that NWF has standing to challenge these four regulations.
2. Issues Where the Challenge to Standing Focuses on the Adequacy of Affidavits (Fourteen Issues)
The primary focus of Industry's remaining 14 challenges to standing is on the
We quickly dispose of six of these challenges; these involve (1) the Secretary's determination of the proper amount of the bond that underground mining operations must post; (2) the Secretary's endorsement of "incremental" and "phased" bonding, both of which NWF alleges allow initial bonds posted by mining operations to fall below the figure established by the statute; (3) the Secretary's interpretation of the scope of the "valid existing rights" exception to the general SMCRA prohibition of surface mining on certain federal lands; (4) the Secretary's determination that the exception allowing surface mining on federal lands which have "no significant recreational, timber, economic or other values which may be incompatible with surface mining operations," see SMCRA § 522(e)(2), allows surface mining in all circumstances except where incompatibility is permanent and reclamation is impossible; (5) the Secretary's decision to eliminate two specific design criteria for dry waste piles, which had been set forth pursuant to the statutory requirement in SMCRA § 515(f) that he establish standards and criteria for waste piles; and (6) the Secretary's creation of what amounts to a first-in-time, first-in-right exception to the general requirement that surface mine operators replace the water supply of property owners whose supply was contaminated or interrupted as a result of the mining operation.
Industry's objections to standing on these issues, as we have noted, generally challenge NWF's allegations of injury in fact. These assertions are without merit. As with the three issues discussed earlier on which Industry conceded standing, see supra, NWF's affidavits here allege injury and make out highly plausible lines of causation leading from the Secretary's acts to the injury.
Industry attempts to impugn NWF's affidavits, mostly by disaggregating each allegation so as to make it appear to hinge on the chance occurrence of multiple unlikely contingencies. See, e.g., Brief for Industry at 24 (contending that absence of a subsidence bond could produce damage only if five events coincided, and therefore describing the alleged injury as "remote and speculative"); see also id. at 41-44 (deploying same form of argumentation with regard to validly existing rights, significant values in national forests, and junior water rights). Industry's attack falters on Autolog Corp., like this a case involving a motion for summary judgment for want of standing; in Autolog, we emphasized that it is not the length of the chain of causation, but rather its plausibility, that is dispositive in standing analysis. Industry's attempt to blend its substantive defense of the merits of the Secretary's actions into its standing argument, see, e.g., Brief for Industry at 24 (suggesting that the incremental bonding regulations are unobjectionable because they mirror a "similarly flexible provision" in the 1979 regulations), likewise cannot overcome NWF's allegations of injuries sufficient to satisfy the standing requirement.
a. Federal Lands
NWF's challenge here is to the Secretary's delegation to a state agency of his duty to approve "mine plans" on federal lands. Under the Act, as the district court noted, a state may agree to regulate mining operations on federal land, but the Act also provides that "[n]othing in this subsection shall be construed as authorizing the Secretary to delegate to the States his duty to approve mining plans on Federal lands." SMCRA § 523(c).
We disagree. Setting aside the issue of whether the Braters have lost a procedural right, Industry wholly fails to counter NWF's separate contention that its affiants lose a distinctive federal substantive right by dint of the delegation to the states: the right to have an environmental impact statement (EIS) prepared. Affiant Arthur Hayes fears that his ability to evaluate and oppose future mining will be impaired in the absence of an EIS, see Hayes Aff., and affiants Edward Dobson, Patty Kluver, and Wallace McRae voice similar concerns. See Dobson Aff., Kluver Aff., McRae Aff. We conclude that, for affiants voicing environmental concerns like those in the aforementioned affidavits, the elimination of the opportunity to see and use an EIS prepared under federal law does constitute a constitutionally sufficient injury on which to ground standing. See Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937-39 (D.C.Cir.1986) (denial of access to government-provided information regarding services available to the elderly held a sufficient injury on which to ground standing); Cady v. Morton, 527 F.2d 786, 790 (9th Cir.1975) (absence of an EIS constitutes injury on the basis of which plaintiffs could sue for violation of National Environmental Policy Act of 1969 (NEPA)); Scientists' Inst. for Pub. Information, Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1087 n. 29 (D.C.Cir.1973) (agency's decision not to draft a NEPA statement caused injury in fact satisfying Sierra Club test); National Org. for the Reform of Marijuana Laws (NORML) v. United States Dep't of State, 452 F.Supp. 1226, 1230 (D.D.C.1978) (citing Scientists' Inst. and concluding that NORML had alleged a sufficient "informational interest" under NEPA in challenging agencies' failure to prepare and consider an EIS with respect to United States participation in herbicide spraying of marijuana plants); Natural Resources Defense Council v. Securities and Exch. Comm'n, 389 F.Supp. 689, 698 (D.D.C.1974) (failure of SEC to make public disclosure of certain information held sufficient injury to support plaintiffs' standing to sue).
b. Off-Site Facilities
Under this heading, NWF challenges the Secretary's interpretation of the jurisdictional scope of the Act. The Act, in § 701(28), states that it covers "surface coal mining operations." In 1983, however, the Secretary excluded from his definition of that term facilities that process coal but do not separate coal from its impurities. Additionally, the Secretary defined that statutory term to exclude off-site facilities beyond a certain distance from a mining operation.
The district court concluded that the affidavits produced by NWF adequately alleged standing. See Findings on Standing, at 20-21 (citing McBride Aff.; Fretwell Aff.). Industry challenges this determination, arguing that the affiants in question did not spell out the types of off-site operations they fear with sufficient specificity to cover all the contingencies NWF now raises. See Brief for Industry at 27. We
More generally, as in its arguments about NWF's standing to challenge the regulations imposing minimum environmental standards, Industry adopts too parsimonious a reading of the standing requirement, one too hypertechnical to be supportable. Both the above-named affiants, as well as others, see, e.g., Combs Aff., allege ongoing harms stemming from the failure to restrict certain off-site operations. Standing on this issue does not require meticulous specificity, or the affiants' intimate familiarity with operations on neighboring land. The core issue here is the scope of jurisdiction over offsite facilities, an issue the affiants identified by the district court surely have standing to raise. In attempting to disaggregate this issue so as to require NWF to name plaintiffs suffering from every conceivable side-effect of the Secretary's narrower conception of the Act's jurisdiction, Industry would turn the standing requirement from a means of identifying genuine controversies into a barrier blocking challenges by all but the most greviously afflicted plaintiffs.
c. Host Soils
NWF here challenges the Secretary's interpretation of § 515(b)(5) of the Act, which provides that coal operators must carefully remove and replace topsoil displaced by their activities. The Secretary in 1983 issued a regulation allowing the storage on host soil of topsoil salvaged from adjacent mining activities, an interpretation NWF contends will damage the topsoil.
The district court concluded that NWF had standing to bring this challenge, see Findings on Standing, at 22-23 (citing Smith Aff.). Industry now argues before us that the district court overlooked the existence of other regulations that impose "protective conditions," thereby limiting possible harm stemming from the newer regulations. This argument, however, goes not to standing, but to the substantive validity of the new regulations.
Industry also challenges as speculative the Smith affidavit upon which the district court relied. See, e.g., Brief for Industry at 29 (concluding that Ms. Smith would be injured only upon the chance occurrence of eight events, one of which it deems to have only a 0.8% chance of occurring). We disagree; Ms. Smith alleged injury with sufficient plausibility and specificity when she asserted:
See Smith Aff. at ¶ 4 (emphasis added). We again recall this court's caution in Autolog Corp., 731 F.2d at 31, that "we are concerned ... not with the length of the chain of causation, but with the plausibility of each of the links that comprise the chain." The Smith affidavit evinces an altogether reasonable fear of threatened harm. Accordingly, we conclude that NWF has standing to challenge this regulation.
d. Prime Farmland Lakes
Under the SMCRA, prime farmland, after a mining operation, generally must be restored to crop-producing land at 100% of the land's pre-mining productivity. NWF here challenges a regulation promulgated by Secretary Watt that creates an exception to this rule; the regulation permits as an acceptable post-mining use of prime
The district court, observing that NWF had named individuals alleging both aesthetic injury and economic harm, concluded that NWF had standing to challenge this regulation. See Findings on Standing, at 23-24. Industry's response is two-fold: it argues, first, that impoundments were permitted under the original regulations under some circumstances, and second, that presuming specific injury to an individual is unduly speculative.
We disagree with each of these contentions. First, while the original regulations may not have categorically proscribed any impoundments of water, Secretary Watt's regulation indisputably made such impoundments more likely than previously, and the permissibility of that policy change is an issue we address on the merits, not in the context of standing. We also disagree with Industry's dismissive treatment of NWF's specific allegations. Affiant Janis King, for example, lives on, rents and farms land classified as prime farmland; her property is adjacent to a strip of land mined by a nearby company. The company has left last-cut impoundments on the neighboring land and failed to return it to prime farmland. Ms. King describes at some length the interference posed by such impoundments to the operation of her seed corn business and to her aesthetic interests, which she has standing to raise under Sierra Club. See King Aff. Accordingly, we conclude on this issue that NWF has standing.
e. Support Facilities on Prime Farmland
NWF here challenges an exception authorized by Secretary Watt to the rule that prime farmland be completely restored, one that would exempt support facilities associated with surface mining operations and underground mining operations. The district court concluded that NWF had standing. See Findings on Standing, at 24-25.
Industry's argument on appeal is that the affidavit on which the district court relied, that of Eleanor Smith, is inapposite to the challenge lodged by NWF. Industry contends that although Ms. Smith refers only to support facilities associated with underground mining, NWF's challenge is specifically addressed to support facilities associated with surface mines. See Brief of NWF as Appellees and Appellee-Intervenors at 43-44 & n.*. NWF replies that although Ms. Smith refers to underground mining, her affidavit leaves open the possibility that surface as well as underground mining may be covered by the lease on her property. See Opposition of NWF to Industry's Motion to Remand at 32 & n. 34. We agree. The Smith affidavit states a broad concern with the effects of surface mining in her area, see Smith Aff. at ¶¶ 3, 8. In light of this fact, we cannot conclude that her lease permits only underground mining. We therefore conclude that her affidavit is sufficient to establish NWF's standing with respect to this issue.
f. Variances From Original Contours
Under the SMCRA, mining operators are expected generally to restore their land to its approximate original contour. The Act, however, grants a limited variance for lands whose slope exceeds 20 degrees. In his 1983 regulations, however, Secretary Watt broadened this variance to include lands whose slope was below 20 degrees, a step NWF has challenged as inconsistent with Congress' intent that mined lands be returned to a state that "closely resemble[s]" its pre-mining condition. See SMCRA § 701(2).
g. Submerged Highwalls
NWF here challenges a regulation that it alleges falls short of requiring mining operations to backfill highwalls created by mining when those highwalls are part of a pit that will be filled with water and thus become a last-cut lake. See Findings on Standing, at 28. The regulations, as the district court observed, "merely contain a general proviso that vertical highwalls be placed sufficiently below the waterline `to provide adequate safety and access for the proposed water users.'" Id. (quoting 30 C.F.R. § 816.49(a)(9)).
The district court concluded that NWF had standing, observing that NWF had alleged injuries including dangers to recreational users of lakes and fishermen. Id. at 28-29 (citing Smith Aff.; Nelson Aff.). Industry's argument on appeal is that (1) the new regulations provide adequate safety for prospective swimmers, (2) the district court exaggerated the concerns of affiant Nelson, and (3) finding injury sufficient to support standing would require a chain of events altogether too speculative. See Brief for Industry at 37-39. We disagree. Again we emphasize that the protections built into the new regulations bear on the merits of the Secretary's interpretation, not on standing. Moreover, although affiant Nelson did not precisely mention the elimination of fishing species, as the district court implied he did, he does state: "I also favor backfilling and regrading of those highwalls because it provides certain species of fish with a shallow habitat necessary for spawning or as habitat." Id. Industry's attempt to denigrate Mr. Nelson's claim of injury to his interest in observing fishing species is unpersuasive. Finally, we reject Industry's by-now familiar refrain that NWF's injury is unduly speculative with our by-now familiar observation that no amount of linguistic disaggregation dissipates the plausibility of the affiants' claim, here, that inadequate reparation of mining damage in the form of highwalls can harm local fish. Accordingly, we find NWF to have standing.
h. Actual Grazing on Land
NWF here challenges a regulation for failing to require that when grazing is the designated post-mining use of land, the mine operator must use the land for grazing for two years before his bond on that land is released.
The district court concluded that NWF had standing to challenge this regulation, citing affidavits of two sportsmen who alleged that their ability to hunt wildlife had been impaired by the failure to restore wildlife habitats to pre-mining conditions. In response, Industry argues that hunting is not grazing, and thus that the two hunters have no standing to challenge a regulation for want of better encouragement of grazing.
We disagree. Industry's argument is premised on the assumption that enhanced grazing itself is NWF's goal. That assumption is incorrect. NWF's argument is
For the reasons stated above, we conclude that the district court correctly found that NWF has standing to challenge each of the regulations at issue, and accordingly we proceed to discuss their merits.
A. Prime Farmland and Pastureland Issues
We consider under this heading two Industry challenges to the district court's dispositions, and one advanced by NWF. In each instance, we affirm the district court's rulings, essentially for the reasons stated by the district judge.
1. Revegetation Success Standards for Prime Farmland
In order to show effective reclamation of prime farmland,
The Secretary's regulation calls for a comparison of the reclaimed land's actual crop productivity with the productivity of neighboring, nonmined prime farmland of the same soil type. To promote a valid comparison, similar management techniques must be employed and similar crops must be grown; measurement adjustments may be made, with the concurrence of the
Industry urges initially that the § 519(c)(2) words "until soil productivity for prime farm lands has returned to equivalent levels of yield" are qualified by the further words of the section, "as determined from the soil survey performed pursuant to section 507(b)(16)." Under Industry's reading, a post-mining soil survey, not actual cropping, is the statutory requirement. The district court, however, concluded that the Secretary was entitled to require actual farming and we agree.
As the district court observed, "[t]he survey required by [§ 507(b)(16)] must be performed before mining takes place, to determine the exact location of the prime farmland. Thus, Congress could not have envisioned that [such a] survey could ... reveal the success of the reclamation operation." PSMRL II (Round II), 21 E.R.C. at 1732-33 (emphasis added). Section 519(c)(2), as we read it, relies on the pre-mining soil survey only to ensure that the comparison area is of the "same soil type" as the mined land in its pre-mined state. Furthermore, the words "equivalent levels of yield," as they appear in the section, are most naturally and plausibly read to anticipate comparison of production yields between the reclaimed land and the nonmined reference area.
As to the preferable measurement method, the Secretary stated in the preamble to § 823.15 of the regulation: "OSM [the Office of Surface Mining] has determined that cropping is the only method currently available to test the restoration of the productivity of prime farmland soils because insufficient research has been published that demonstrates the reliability of any other method." 48 FED.REG. 21458 (1983). Industry concedes "an even division of opinion as to whether the necessary techniques in a soil survey dealing with reclaimed
In sum, we do not hold that actual crop growth is required by the Act, although the statute at least arguably suggests such a requirement. Having rejected as unfounded Industry's contention that a soil survey is required, we have no cause to disturb the Secretary's reasoned and expert judgment that actual crop growth is the appropriate means to measure achievement of the statutory objective of restoration of prime farmland. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).
2. Revegetation Success Standards for Grazing and Pastureland
Rejecting NWF's challenge, repeated here, the district court upheld the Secretary's revegetation regulation for land with a post-mining grazing or pastureland use, 30 C.F.R. § 816.116(b)(1).
NWF argues first that soil surveys alone are inadequate to demonstrate the success of grazing land reclamation, and second that actual grazing must be required because it is the only reliable measure of range land revegetation success. The district court agreed that "the use of a soil survey alone is insufficient," but found that the Secretary so recognized. PSMRL II (Round III), 620 F.Supp. at 1563. In this court too, the Secretary of the Interior has represented that the regulation does not contemplate reliance on a soil survey "or any other method not based on actual production to establish vegetative success." Brief for the Secretary of the Interior as Appellee at 23-24; see also 49 FED.REG. 40148 (1983) (preamble to final rule). Thus, there appears to be no contest over the insufficiency of a soil survey. The genuine issue concerns the actual production method necessary or proper to determine vegetation success.
For its second point, NWF relies most heavily on a National Academy of Science Report on mined land reclamation, National Research Council, Surface Mining: Soil, Coal, and Society 124-26 (1981). We comprehend that study, as did the Secretary and the district court, to conclude that evaluation of the productivity of soil reclaimed for grazing must be based on measurements of actual production. But we do not find in the study, any more than the Secretary
3. Exemptions from Performance Standards for Prime Farmlands
The Secretary's regulations specify performance standards — measures mine operators must take — to secure eventual restoration of prime farmland to its original state and use following mining. See 30 C.F.R. §§ 823.12 et seq. These prime farmland protective regulations govern soil removal, storage, replacement, and restoration. An anterior regulation, 30 C.F.R. § 823.11,
a. Construction of Water Impoundments on Prime Farmland
Section 823.11(b) of the regulations condones reclaiming land that had been prime farmland prior to mining by constructing a permanent water impoundment, if the mine operator satisfies the general conditions for altering the use of affected land and if the water body is designed to minimize the loss of prime farmland. The Secretary had proffered a construction of the water impoundment exception that would limit the allowance to those found beneficial or necessary to agricultural activity, i.e., water bodies necessary for irrigation of prime farmland would be allowed. But the district court, in agreement with Industry, found no such limitation in the provision; purposes for impoundments allowed by the regulation, the court enumerated, "include[d] recreational, municipal water supply, replacement of wetlands, livestock consumption, and esthetic improvement." PSMRL II (Round II), 21 E.R.C. at 1734. The court concluded that, desirable as such uses may be, the Act —
Industry locates in § 515(b)(8) of the Act "unequivocal" authorization for "the creation ... of permanent impoundments when reclaiming mined land," and maintains that "the statute at no point commands that all prime farmland be reclaimed to crop farming." Brief for Appellants NCA at 54-55.
Taking one step back from the subsection Industry advances, we come upon the instruction, in § 515(b)(7), that "for all prime farm lands ... to be mined and reclaimed ... operator[s] shall" follow specified soil removal, storage, and replacement procedures deemed necessary by Congress to restore the productivity of mined prime farmland. See also H.R.REP. No. 218, 95th Cong., 1st Sess. 67 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 605 (standards designed to assure full reclamation).
Section 519(c)(2) of the Act also accords with the district court's ruling and is dissonant with Industry's position. See supra note 24. This section permits release of the bond or deposit placed by a mine operator to guarantee satisfactory reclamation only when the soil productivity of the affected prime farmland has been returned to levels of yield equivalent to those of neighboring, nonmined prime farmland. While the provision does not say in so many words that "mine operators shall restore prime farmland to its pre-mined use," bond release is impermissible until such restoration is achieved.
We reproduce in the margin a significant excerpt from the legislative history. The item is a statement by Senator Culver, sponsor of an amendment to the Act; as proposed by Senator Culver, the amendment expressly denied a mining permit to any operator unable to demonstrate the ability fully to restore prime farmland, if the mine area at stake included more than ten percent prime farmland.
Industry's reliance on § 515(b)(8)'s recognition that permanent water impoundments may be created on mined land does not aid the more focused inquiry we must make. That provision instructs that any water impoundment constructed on mined land must meet certain performance standards, but it neither requires mine operators to build
b. Exemption for Prime Farmland Affected by Coal Preparation Plants, Support Facilities, and Roads
The exemption contained in § 823.11(a) of the Secretary's regulation, see supra note 29, applies to surface and underground mines alike, and concerns "[c]oal preparation plants, support facilities, and roads" that "affect a minimal amount of land." 30 C.F.R. § 823.11(a). To fall within the exemption, these facilities must be "actively used over extended periods of time." Id. On NWF's challenge, the district court remanded this exemption for two distinct reasons. First, the court held that despite adequate reasons for exempting land underlying surface facilities of underground mines, the Secretary had too swiftly equated surface mining with underground mining for the purpose at hand. The district judge instructed the Secretary to reconsider, taking account of "basic differences" between the two operations. Second, the district court found the exemption imprecise because the Secretary had not further defined the terms "extended periods of time" and "minimal amount of land." PSMRL II (Round II), 21 E.R.C. at 1734-35. This second ruling is not contested on appeal. The challenge here is limited to Industry's objection to the district court's first basis for the remand.
We note, initially, that Industry misdescribes what the district court held. The ruling we review does not command application of § 515(b)(7) of the Act to the soil under support facilities for surface mines. But see Brief for Appellants NCA at 59, 63. Rather, the remand called for a more cogent explanation of the Secretary's action, so that the court could intelligently rule on the consistency of that action with the statute.
The regulatory preamble to § 823.11, 48 FED.REG. 21452-55 (1983), offers two reasons for ranking surface mining operations with underground operations in the context at issue. First, the Secretary referred to the district court's 1980 ruling that it would be unreasonable not to exempt underground mine operators' surface support facilities that are actively used over extended periods of time but affect a minimal amount of land. See PSMRL I (Round II), 19 E.R.C. at 1480-81. The Secretary thought that the same rationale, i.e., the arbitrariness of "command[ing] operators to segregate [and store] the topsoil and the underlying horizons for 20-40 years in situations where reclamation will affect a small area," id., "appl[ies] equally well to such facilities associated with surface mines. Surface mines often use the same types of facilities as underground mines and for comparable periods of time." 48 FED.REG. 21453 (1983).
Second, the Secretary relied upon his own finding that, for restoring prime farmland affected by surface support facilities, the prime farmlands standards provide procedures less suitable than those contained in the general performance standards.
The Secretary's first justification, as the district court observed, did not adequately explain why the court's 1980 opinion, written with underground mine facilities in mind, should apply to surface facilities for surface mining operations. During the comment period on § 823.11, two commenters noted that surface mine operations, unlike underground mine operations, constantly disturb and reclaim the surface in the process of removing coal. 48 FED.REG. 21453 (1983); see SMCRA § 515(b)(16) (reclamation is to proceed as contemporaneously as possible to the land disturbance). Soil affected by surface mine facilities, these comments suggested, need not be stored for 20-40 years until the facilities are dismantled, but could be used in the reclamation of the earliest mine cuts. Similarly, the prime farmland area affected by facilities for the life of the mine might be reclaimed using soil removed from the final mine cut.
Industry stresses that neither the district court nor this court is qualified to settle questions of mining techniques, i.e., to say "how surface mines deal with the soil under support facilities." Brief for Appellants NCA at 62. We do not pretend to mining technique expertise, nor did the district court. We do insist, however, that the Secretary tell us comprehensibly, based on his expertise, why — despite "basic differences between surface and underground mining operations," PSMRL II (Round II), 21 E.R.C. at 1735 — a decision focused on facilities serving underground mines applies "equally well" to facilities supporting surface mines.
The Secretary's second prop for § 823.11(a) is unstable at two critical joints. First, the proffered explanation addresses only, and thus could justify only, exemption from the special soil removal, storage, and replacement standards; the explanation does not tell us why the special soil restoration requirements of 30 C.F.R. § 823.15 need not be observed. And second, the explanation loses some of the force it might otherwise have when, three sentences after the Secretary concludes that the special performance standards "would be to no avail" for land affected by support facilities, he stresses that "only [facilities] which affect a minimal amount of land are exempted [from prime farmland performance standards]." 48 FED.REG. 21453 (1983). We do not comprehend why the effectiveness of the reclamation scheme the Secretary appraises as superior when support facilities are involved, see supra note 34 and accompanying text, should vary according to the amount of land to be reclaimed.
The district court, we reiterate, remanded § 823.11(a) because "the Secretary's reasoning [was] flawed." PSMRL II (Round II), 21 E.R.C. at 1735. We agree. The district court did not rule that the requirements of § 515(b)(7) of the Act are nonwaivable even as to soil under support facilities for surface mines, nor do we.
B. Bonding to Assure Reclamation of Land Affected by Mine Operations
In this part we address three challenges to district court rulings relating to the Secretary's bonding regulations. We reverse the district court's rulings, challenged by Industry, regarding incremental and
1. Incremental and Phased Bonding
To facilitate bonding arrangements by mine operators, the Secretary has authorized the states (as regulatory authority) to implement plans allowing both incremental and phased bonding. Under the incremental bonding prescription, 30 C.F.R. § 800.11(b),
Under the Secretary's authorization for phased bonding, 30 C.F.R. § 800.13(a)(2),
The district court found the incremental bonding allowance impermissible under § 509(a) of the Act;
We pretermit the question whether incremental and/or phased bonding can be accommodated within the terms of §§ 509(a) and (b) of the Act. Section 509(c), we hold, reasonably could be read by the Secretary to permit his approval of alternative bonding methods that will fulfill the purposes of the Act. While § 509(c) is not a model of the drafter's art, and the district court's reading of the provision is a plausible one, we defer to the reasonable interpretation ultimately proffered by the Secretary. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984); Chemical Mfrs. Ass'n v. NRDC, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985).
Section 509(c) reads, in relevant part:
(Emphasis added.) Under the district court's construction, Congress established the sole permissible bonding program, but allowed the Secretary to approve a system alternative to bonding, e.g., insurance. The Secretary, in contrast, reads the Act to permit any system that fulfills the Act's objectives and purposes; both bonding and nonbonding programs, the Secretary maintains, could fit that description.
The Conference Report on the bill that became the Act, we think it significant, accords with the Secretary's ultimate interpretation. The Report observed that the House bill
H.R. CONF.REP. No. 493, 95th Cong., 1st Sess. 103 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 735 (emphasis added). The dispositive question, it thus appears to us, is whether the Secretary rationally concluded that the incremental and phased bonding plans he permitted "will achieve the [same] objectives and purposes" as those achievable under a plan indisputably consistent with §§ 509(a) and (b) of the Act. SMCRA § 509(c).
The district court rejected incremental bonding because the area covered by such a bond could be (and likely would be) smaller than the area to be mined in the course of one permit term. But under the Secretary's prescription, no surface area could be disturbed until the regulatory authority determined that the amount of bond posted for that area was sufficient to assure completion of the reclamation plan in the event of forfeiture. 30 C.F.R. § 800.11(c); § 800.14(b); see 48 FED.REG. 32937 (1983). True, the regulation allows an operator to confine bonding ahead to that portion of the permitted area that the operator plans to affect in the near future. But so long as the bond is calculated (as 30 C.F.R. § 800.14(b) requires) at the full cost of reclaiming that particular increment of land, and the size and configuration of the increment (as 30 C.F.R. § 800.11(b)(4) requires) are appropriate for efficient reclamation, we do not see how the arrangement appreciably heightens the risk that any land will be left unreclaimed.
Phased bonding, too, measures up to the standard we deem critical. We reiterate that "[t]he total of the phase bonds must be sufficient to cover costs to the regulatory authority to complete the reclamation plan, and bond[s] covering all three phases must be posted before disturbance of the area or increment bonded." 48 FED.REG. 32936 (1983).
Phase bonds are all posted before any land is disturbed, and are individually released as each reclamation phase is accomplished, with limits on release comparable to those applicable to a single bond. See supra note 42. If the operator defaults and additional work on a completed phase becomes necessary, remaining bonds can be used to complete that reclamation work, but coverage may be inadequate to carry out in full the later reclamation stage(s). A single bond covering all three reclamation phases, we note, may be released in stages as each phase is accomplished. SMCRA § 519(c) (60% may be released upon backfilling, regrading and drainage control; an unspecified percent may be released upon completion of revegetation and other requirements; the remainder may be released upon expiration of the period of operator liability following revegetation). If, subsequent to partial release of the single bond, additional work on an earlier phase is required, the operator's default will have similar consequences: the unreleased portion of the bond can be used to complete that work, but an inadequate amount may remain to fulfill the subsequent phase(s). Thus phased bonding appears to create no appreciably greater risk of incomplete reclamation than does a single bond.
In sum, the Secretary reasonably construed § 509(c) of the Act, and responsibly determined that the incremental and phased bonding programs he authorized fulfilled the statutory objective: to ensure, to the extent feasible, completion of the reclamation plan in the event that an operator defaults. We therefore reverse the district court's judgment with respect to incremental and phased bonding and uphold the Secretary's prescriptions.
2. Bonding for Damage Caused by Subsidence of Land Overlying Underground Mines
The Secretary requires underground mine operators to repair any material damage to land caused by subsidence. 30 C.F.R. § 817.121(c)(1). Over Industry's objection, the district court upheld the Secretary's requirement, and we have affirmed that disposition. See infra pp. 739-41. NWF charges that the Secretary's bonding regulations are at odds with his
The Secretary explained that whether, when, and where subsidence will cause damage to the surface cannot be calculated with any degree of reliability when operations commence: "[T]echniques for estimating the extent of necessary land restoration that may result from subsidence have not yet been developed[, so that] the amount of a performance bond based on estimated costs would be pure conjecture." 48 FED.REG. 32948 (1983). With this impediment to initial bonding in view, the Secretary settled on the following arrangement.
If and when material damage to land results from subsidence, the operator's reclamation and bonding obligations ripen simultaneously. The regulatory authority may, at that point, adjust the bond to take full account of the necessary reclamation work. 30 C.F.R. § 800.15(a), implementing SMCRA § 509(e). Liability insurance proceeds may also be used to accomplish reclamation,
In thus dealing with the problem of bonding for damage to land from subsidence, the Secretary invoked § 516(d) of the Act, which permits "such modifications to ... bond requirements as are necessary to accommodate the distinct difference between surface and underground coal mining."
Rules proposed in 1978 would have required mine operators to post a bond adequate to defray the potential costs of repairing subsidence damage. The final 1979 rules, however, dropped this requirement in the face of comments emphasizing the absence of information and techniques adequate to project what restoration subsidence might require, and therefore the costs entailed. See 44 FED.REG. 15112 (1979); cf. 44 FED.REG. 15274 (1979) (citing technical literature, the Secretary observed that "[a]n itemization of the probable effects of subsidence on structures would most likely be so speculative or general as not to be useful to the property owner").
In 1980, the Secretary added to the bonding regulations a provision applicable only to underground operators engaged in planned subsidence mining. See FED.REG. 6031, 6037, 52309, 52318 (1980). This provision, 30 C.F.R. § 801.16(a),
Not only was the provision put forward in 1980 limited to operators engaged in planned subsidence; more significantly, it did not require coverage for repairing subsidence-caused surface damage. Instead, bonding was to cover only pre-operation preventive measures. See 45 FED.REG. 6031 (1980) ("protection of surface owners from damaging effects of subsidence [is] the subject of further study"). In 1981, the Secretary deleted § 801.16(a) from the regulatory scheme. He reasoned that a bond affording funds to take preventive measures was unnecessary because, upon a mine operator's failure to undertake those measures, the operator would lose permission to mine, thus eliminating the need for the preventive measures. 46 FED.REG. 59934 (1981).
NWF cites nothing in the current administrative record relevant to the difficulty of estimating subsidence damage that was not also before the Secretary in 1979. Compare Brief for Appellants NWF at 30 (evidence in current record allegedly demonstrating predictability of subsidence consists of (1) environmental impact statement, (2) statement by Industry and (3) statement in 1979 record), with Brief for Appellants NWF at 25 n.* (environmental impact statement in current record also accompanied the 1979 regulations), and 44 FED.REG. 15273 (1979) (similar Industry statement made in 1979). Because the Secretary has not adopted a new view or approach on bonding for the effects of subsidence, but has merely restated a position he previously advanced and justified, we would require a further demonstration on
C. Regulatory Guidance
In 1983, to afford greater leeway to local regulators, the Secretary cut back on nationwide guidelines in three areas: alluvial valley floors; coal mine waste disposal; backfilling and grading. The district court, on NWF's challenge, held that the Secretary had not adequately justified the regulatory reductions. We affirm the district court's judgment with respect to alluvial valley floors, but reverse that judgment as to mine waste disposal. On backfilling and grading, we hold, in accord with the district court, that the Secretary was intolerably terse in explaining his revised positions on "contemporaneous reclamation" and "thick and thin overburden." Contrary to the district court, however, we uphold the Secretary's action on "terracing."
We stress that to the extent we reject the Secretary's actions under this heading, we do so provisionally. We do not hold that the Secretary's revisions are proscribed by the Act; we do hold that he has not adequately accounted for the regulatory changes he ordered.
1. Alluvial Valley Floors
Section 515(b)(10)(F) of the Act requires surface coal mining operations to "preserv[e] throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors in the arid and semi-arid areas of the country."
Prior to 1983, § 785.19(d) of the regulations contained detailed specifications of the information needed in a permit application when the proposed operation might affect an alluvial valley floor or waters supplied to an alluvial valley floor. In 1983, the Secretary withdrew the enumeration of "technical data, information, and analysis" that formerly had to be presented and evaluated in a permit application, and instead "require[d] generally that sufficient information be submitted to enable the regulatory authority to make the necessary determinations." 48 FED.REG. 29814 (1983).
The Secretary cites the following passage as setting out a fully adequate explanation for the deletion of the detailed requirements contained in the original regulation:
48 FED.REG. 29802-03 (1983) (emphasis added), quoted in Brief for the Secretary of
As to the asserted "confusion" attributed to the "detailed informational requirements," we note that the Secretary gave no particulars. He did not identify the specific source or effects of the confusion, nor did he say why revisions trimming and clarifying the requirements would not suffice to deal with that problem.
The Secretary's principal justification for the changes, however, was not to dispel confusion, but to "provide regulatory authorities with flexibility." 48 FED.REG. 29802 (1983); see id. at 29814 ("The principal difference [between the original and the revised regulation] is that the regulatory authority will have the flexibility to adjust the type of data and level of analysis necessary on which to base its determinations."). But if "[m]ost of the eliminated material ... is the type of information likely to be valuable in assisting the regulatory authority in making its determinations," 48 FED.REG. 29802-03, why was wholesale elimination ordered? As the district judge observed, the reference to unofficial "guidelines" is not forceful: "The guidelines [alluded to] are not mandatory and there is no indication that operators or regulatory authorities will heed them. The existence of these guidelines, however, undermines the Secretary's argument that the diversity of [site-specific] conditions ... precludes the use of [standards or criteria set by regulation]." PSMRL II (Round II), 21 E.R.C. at 1740 n. 20.
In 1978, in support of the original regulation, the Secretary then in office noted that the required studies "are believed to be representative of standard ... studies necessary to establish characteristics which support the essential hydrologic functions of alluvial valley floors, and determine the effect of the proposed operation on agricultural activities." 43 FED.REG. 41720 (1978) (emphasis added); see also 44 FED.REG. 15079, 15089 (1979) (objective of § 785.19(d) is to ensure regulatory authority has information it needs). In changing the regulation to foster "flexibility," the Secretary in 1983 did not question the above-quoted conclusion. But if the standards originally set are "necessary to establish characteristics ... support[ing] the essential hydrologic functions of alluvial valley floors," then we do not comprehend why or how "flexibility" would measurably increase under the Secretary's revised approach.
In sum, the Secretary's accounting for the 1983 deletions slips from our grasp, as it did from the district court's. We affirm the remand so that the Secretary may provide appropriate, official guidance to the operators and regulatory authorities, or explain coherently why such guidance is not needed.
2. Mine Waste
In 1983, the Secretary revised the regulations governing disposal of coal mine waste by substituting performance standards — rules describing minimum satisfactory end results — for "how to" rules (design standards). Compare 30 C.F.R. §§ 816.81 et seq. (1982) with 30 C.F.R. §§ 816.81 et seq. (1986).
The aim of the regulatory scheme regarding mine waste is to check, contain, or
Prior to 1983, design standards mandated by the Secretary for the construction of refuse piles, aimed at achieving stability and incombustibility, included this instruction: "The coal processing waste shall be — (1) Spread in layers no more than 24 inches in thickness [i.e., two foot lifts]; and (2) Compacted to attain 90 percent of the maximum dry density." 30 C.F.R. § 816.85(c)(1), (2) ((1982).
The district court remanded revised §§ 816.81 and 816.83 insofar as they fail to provide absolute requirements for lift thickness and post-compaction density, or other satisfactory "how to" rules. PSMRL II (Round III), 620 F.Supp. at 1535-36. In thus remanding, the district court misconstrued the Act; as NWF no longer contests, the district judge incorrectly read § 515(f) to mandate design standards for the mine waste at issue, i.e., non-impounding coal mine waste refuse piles. We find that the Secretary did not contravene § 515(f), and that he adequately explained his departures from the earlier regulations; we therefore reverse the district court on this matter.
Section 515(f) of the Act applies to "waste piles referred to in section 515(b)(13) and section 516(b)(5)," and only to such piles. SMCRA § 515(f). Both § 515(b)(13) and § 516(b)(5), we note, refer exclusively to waste piles "used either temporarily or permanently as dams or embankments." Because waste piles of the kind at issue here are not used as dams or embankments, § 515(f) is inapposite.
The Secretary accounted reasonably for his 1983 deletion of the compaction density standard. See State Farm, 463 U.S. at 43, 103 S.Ct. at 2866-67. He anticipated that, by allowing operators to design waste sites to account for "the requirements and topography of specific sites," the revised scheme would foster the design of "more efficient and cost-effective coal refuse disposal sites." 47 FED.REG. 26599 (1982) (preamble to proposed revisions). Further impetus for the change came from the Secretary's revision regarding the type of waste placed in coal mine waste refuse piles. Prior to 1983, §§ 816.81 et seq. of the regulations governed only waste created during the processing of coal. After 1983, §§ 816.81 et seq. also controlled disposal of waste excavated from the development of underground mines. Compare 30 C.F.R. §§ 816.81 et seq. (1982) (governing coal processing waste disposal) with 30 C.F.R. §§ 816.81 et seq. (1986) (governing coal mine waste disposal, with coal mine waste defined in 30 C.F.R. § 701.5 (1986) to include coal processing waste and underground development waste).
47 FED.REG. 26603 (1982); see also 48 FED.REG. 44018 (1983) ("[h]eterogeneity of coal mine waste material resulting from variations in coal mining techniques ... renders meaningless the application of standard compaction measures").
Not only did the Secretary relate how changes in the definition of waste rendered the 1979 rule obsolete; he also addressed the critical concerns motivating adoption of the ninety percent compaction rule in 1979: stability and incombustibility.
Given the propriety of eliminating the ninety percent compaction standard, we need not tarry over the Secretary's allowance for variances from the two foot lift rule. Mine operators must obtain mine regulator approval before constructing a waste disposal site. 30 C.F.R. § 816.81(a) (1986). Lift thickness has regulatory significance only as a means of assuring adequate compaction. See supra note 54. It can be expected, therefore, that mine operators will succeed in obtaining a variance from the two foot lift requirement only when compaction adequate to assure stability and incombustibility remains feasible.
To recapitulate: the Secretary, contrary to the district court's central but erroneous assumption, transgressed no provision of the Act, and acted reasonably in adopting the mine waste regulatory revisions we have just reviewed. Accordingly, we reverse the district court's ruling on this joint of the case.
3. Backfilling and Grading
In 1983, the Secretary revised his regulations concerning the first stage of reclamation — backfilling and grading the soil and other overburden (spoil) stripped from the land when mining began. NWF challenged the revisions to 30 C.F.R. § 816.100 and § 816.101 (contemporaneous reclamation), § 816.102 (terracing), and § 816.104 and § 816.105 (thin and thick overburden). These provisions restate the Act's requirement that mine operators restore land to its approximate original contour, if the volume of spoil permits, as contemporaneously with mining operations as practicable. SMCRA §§ 515(b)(3), (b)(16).
Unlike the replaced regulations, the revised provisions failed to furnish regulatory authorities with guidance beyond the prescriptions of the Act itself, and on that account the district court remanded the revisions. PSMRL II (Round II), 21 E.R.C. at 1744-46. On appeal, the Secretary and Industry contend that the district court incorrectly read the Act to require, for each statutory prescription, additional regulatory guidance or "fleshing out." We hold, in accord with the Secretary, that the Act does not automatically and inevitably require him to "flesh out" the prescriptions of §§ 515(b)(3) and (b)(16). Nonetheless, we affirm the remand of the contemporaneous reclamation and thick and thin overburden regulations, for only with respect to terracing did the Secretary adequately explain why guidance beyond the statutory requirements sensibly could not be given to local regulators.
We note that the Act expressly commands the Secretary to flesh out certain statutory provisions. Section 515(f), for example, directs the Secretary to adopt rules governing "the design, location, construction, operation, maintenance, enlargement, modification, removal, and abandonment" of the mine waste piles permitted under § 515(b)(13) (mine waste piles used as dams or embankments) and § 516(b)(5) (same) of the Act. Similarly, § 517(h)(2) instructs the Secretary "by regulation, [to] establish procedures to insure" that the inspections of mine operations mandated by § 517(a) are "adequate and complete." Nothing in the Act, however, expressly requires the Secretary to flesh out §§ 515(b)(3) or (b)(16).
NWF, arguing that the regulations must genuinely guide local regulators in applying each of the Act's prescriptions, cites the House Report accompanying the bill that became the Act. This Report states:
H.R.REP. NO. 218, 95th Cong., 1st Sess. 85 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 622. The Report thus featured by NWF, however, does not say that the Secretary is obliged to flesh out each and every one of the Act's "environmental performance standards." We think the Report is most reasonably read to mean that, in addition to the matters on which the Act explicitly directs "fleshing out," the Secretary is to exercise his informed discretion in deciding what other statutory performance standards bear elucidation or elaboration.
Our task, now, is to review reductions of particular regulations — the contemporaneous reclamation, terracing, and thin and thick overburden regulations — to determine whether the revisions comport with the Secretary's regulatory responsibility. Under State Farm "the agency must examine the relevant data and articulate a satisfactory explanation" for the revised regulations if they are to gain judicial approbation. 463 U.S. at 43, 103 S.Ct. at 2866-67. The Secretary's accounting for his actions regarding the contemporaneous reclamation, and thin and thick overburden regulations fails to meet this standard; we do not find in the rulemaking record any identified factual basis for, or satisfactory explanation of, the Secretary's conclusion that the variety of local conditions warrants regulations on these matters that simply reiterate the relevant prescriptions in §§ 515(b)(3) and (b)(16) of the Act. In contrast, we find that the Secretary adequately explained his revision of the terracing regulation.
a. Contemporaneous Reclamation
Section 515(b)(16) of the Act directs mine operators to reclaim land "as contemporaneously as practicable [to the] mining operations." In 1979, the Secretary had issued both a general instruction that reclamation occur "as contemporaneously as practicable with mining operations," 30 C.F.R. § 816.100 (1982),
The 1983 revision retained the general prescription in § 816.100,
b. Thin and Thick Overburden
Section 515(b)(3) of the Act directs mine operators to return land to its "approximate original contour."
In 1983, the Secretary eliminated the numerical definition, permitting a variance whenever the mine operator demonstrates that spoil is either "insufficient" or "more than sufficient" to restore land to its approximate original contour. 30 C.F.R. § 816.104 and § 816.105 (1986).
The direction in § 515(b)(3) of the Act to return land to its approximate original contour countenances the substitution of a terraced post-mining landscape for a non-terraced pre-mining landscape. See supra note 62 (SMCRA § 701(2) permits terracing to achieve approximate original contour). The 1979 regulations required terraces to be constructed with bench widths less than twenty feet and slopes between benches (out-slopes) less than fifty
The Secretary has explained on various occasions, both before and after the revisions, that the purpose of the terrace dimension regulations is to ensure the creation of land forms that will support post-mining land uses and provide erosion and water runoff control. See 48 FED.REG. 23363 (1983); 46 FED.REG. 39854 (1981); 44 FED.REG. 15228-29 (1979); see also Memorandum in Support of Federal Defendant's Cross Motion for Summary Judgment (March 5, 1984) at 68, National Wildlife Federation v. Hodel (D.D.C.) (No. 83-698), reprinted in Supplemental Brief for the Secretary of the Interior (Dec. 24, 1986) at Tab 3 (memorandum filed in district court in this case). The terrace bench and outslope requirements were never intended to fulfill the statutory environmental performance standard of ensuring return to approximate original contour. SMCRA § 515(b)(3). Instead, these requirements existed to ensure restoration of mined land to a condition capable of supporting its post-mining uses, by affording erosion control and moisture conservation, so that revegetation could be accomplished in accordance with SMCRA §§ 515(b)(2), (4), (19).
Supporting his elimination of the bench width and outslope angle rules, the Secretary explained that terrace design to control surface erosion and water runoff must be based on local soil characteristics, local soil-management practices, and local climate. 48 FED.REG. 23363 (1983).
D. Residual Issues
We consider under this heading five rulings appealed by Industry. The Secretary has joined in only one of the five challenges. We affirm the district court's affirmance of the Secretary's regulation on four of these issues, and we find the fifth challenge moot.
1. Damage Caused by Subsidence of Land Overlying Underground Mines
Industry appeals the district court's ruling upholding the Secretary's regulation requiring the restoration of subsided land. We now affirm.
Subsidence occurs when a patch of land over an underground mine sinks, shifts, or otherwise changes its configuration. It is a costly and serious problem, particularly in urban areas, where land overlying and adjoining underground mines has been developed. In 1977, Congress noted that the "estimated cost for controlling subsidence under 200 urbanized areas now affected is approximately $1 billion." H.R.REP. NO. 218, 95th Cong., 1st Sess. 126 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 658. In response, the Secretary promulgated regulations to deal with the subsidence problem pursuant to §§ 516(b)(1), 516(b)(2), and 515(b)(10) of SMCRA. These 1983 regulations provide that a mine operator shall "[c]orrect any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it is capable of supporting before subsidence." 30 C.F.R. § 817.121(c)(1) (1984).
Industry contends that by establishing a duty to restore land damaged by subsidence — as opposed to prevention of subsidence — the regulation exceeds the Secretary's authority under any of the three statutory sections relied on. In the course of this case's lengthy and complicated history, the Secretary has alternated between two mutually exclusive explanations to justify his authority. Secretary Andrus first promulgated regulations requiring restoration of subsided land in 1979, see 30 C.F.R. § 817.124(b) (1979), basing his authority to impose such a duty on "the Act's requirement for maintenance of the surface's value and reasonably foreseeable future uses." 44 FED.REG. 15,275 (1979); see SMCRA § 516(b)(1).
While appeals from the district court's decision were pending, the new Secretary of Interior, James Watt, announced the Department's intent to reconsider all the challenged SMCRA regulations. This court accordingly remanded the entire case; and in 1983, Secretary Watt repromulgated subsidence regulations, which were changed in certain minor respects but retained the basic requirements of the 1979 regulations. In particular, Secretary Watt retained the duty to restore subsided land. The explanation accompanying the 1983 regulations, however, adopted the district court's theory that a duty to restore subsidence damage derived from the incorporation of § 515 via § 516(b)(10). 48 FED.REG. 24644 (1983). In so doing, the Secretary necessarily renounced the Department's prior position that § 516(b)(1) authorized the regulations since § 516(b)(10) could apply only if restoration of subsidence was not a specified impact for § 516(b)(1) purposes. And not surprisingly, since the Secretary was now relying on the court's previous interpretation of § 515(b), the district court upheld the regulations based on the authority of § 516(b)(10). The Secretary's briefs before us have also relied on § 516(b)(10). But at oral argument, counsel for the Secretary reverted to Secretary Andrus' original view that a duty to restore subsided land arises directly from the language of § 516(b)(1). We now find authority to rest with the latter — § 516(b)(1).
We agree with Industry that the language of § 516(b)(10) and the structure of the Act do not permit the wholesale incorporation of § 515 requirements whenever the provisions of § 516 are less stringent than those of § 515. Industry argues that subsidence is not subject to the requirements of § 515 because it is a surface impact specifically treated in § 516(b)(1). The district court's theory is that § 516(b)(1) "deals with the prevention of subsidence causing material damage, not remedial measures." 48 FED.REG. 24644 (1983). Therefore, reasoned the district court, § 515 standards are made applicable "to the extent that they pertain to remedial measures." Id. It is clear, however, that the language of § 516(b)(10) precludes that interpretation. By its terms, § 516(b)(10) is triggered only by "surface impacts not specified." It does not purport to be operative for remedies not specified. The district court's interpretation would so expand the scope of incorporation of § 515 via
We hold the Secretary's original justification, § 516(b)(1), the more reasonable interpretation of the two. Section 516(b)(1) requires the mine operator to "maintain the value and reasonably foreseeable use" of land subject to subsidence. For the Secretary to construe that language as authorizing a regulation requiring the restoration of subsided land is certainly not inconsistent with the section's language: "maintaining the value" of land may well require restoring it after it has been damaged. The legislative history of the Act, although not offering any specific guidance on the construction of § 516(b)(1), makes clear that Congress regarded subsidence as a serious problem. See H.R.REP. NO. 218, 95th Cong., 1st Sess. 126 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 658. This history also suggests that reclamation was anticipated for a broad range of mining impacts. See H.R.REP. NO. 45, 94th Cong., 1st Sess. 202 (1975) ("After surface operations or other mining impacts are complete at a particular site, the area must be regraded and a diverse and permanent vegetative cover established."). Finally, Industry has not pointed to any clear evidence of an intent to preclude a duty to restore — a necessary prerequisite here to rebut the inference that Congress meant to delegate to the Secretary the authority to interpret the general and ambiguous terms of § 516(b)(1). See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984).
Our review of the Secretary's decisionmaking is, of course, limited to the reasoning evidenced on the record. SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577-78, 91 L.Ed. 1995 (1947). This time-honored rule prevents a court from affirming administrative action on a basis not provided by the agency and thereby guards against judicial encroachment into the policymaking domain of the administrative agency. Id. at 196, 67 S.Ct. at 1577. The Chenery doctrine also facilitates judicial review by ensuring that a court has a clear statement of the rationale it is reviewing. "It will not do for a court to be compelled to guess at the theory underlying the agency's action." Id. at 196-97, 67 S.Ct. at 1577. Here the record contains two alternative bases for the Secretary's regulation, one reasonable and one not. We think that suffices when, as here, the Secretary's original rationale was reasonable and the second was adopted in obvious reliance on the district court's opinion. This is not a case where we must construct a theory for the agency's action or where the agency's reasoning is too sparse or confusing to permit review. Rather, the record contains a clear statement of the basis on which we affirm the Secretary, and therefore a remand is not required by Chenery.
2. Reshaping Cut and Fill Slopes (Roads and Underground Mines)
Industry appeals the Secretary's regulations regarding the reshaping of cut and fill slopes. Because those regulations were remanded pursuant to another proceeding, and not repromulgated by the Secretary, we find the present appeal misplaced. Accordingly, we hold Industry's challenge moot.
The Secretary promulgated national program regulations requiring the reclamation of roads at underground mine sites in accordance with the same standards applied to roads at surface mining sites. The regulations, which were identical to those applied to surface mining sites, mandated, inter alia, the "reshaping [of] all cut and fill slopes to be compatible with the postmining land use and to complement the drainage pattern of the surrounding terrain." 30 C.F.R. § 817.150 (1984).
Industry challenged the regulation on the ground that its application to underground mines, where roads might have been in place for forty years and might have become settled and revegetated, would be unnecessary and possibly harmful. It claimed the reclamation standards of § 515(b)(3), applicable to surface mines, could not be applied to underground mines
In a separate challenge, however, the district court remanded the Secretary's road classification system because it had been promulgated without proper notice and comment. Because the regulations establish performance standards for a "primary" road, 30 C.F.R. § 817.151 (1984), not applicable to "ancillary" roads, 30 C.F.R. § 817.150(b)-(f), the Secretary suspended the road regulations in their entirety. He announced his intent "to propose new regulations which define the term `road' and which address the design, construction, use and maintenance of roads used in surface coal mining operations." 50 FED.REG. 7276 (1985) (emphasis added). Consequently, the Secretary now argues that in light of the suspension, Industry's challenge is moot. Industry disagrees, asserting that the Secretary clearly intends to repropose the same regulation, as evidenced by his promulgation of regulations for the Tennessee federal program incorporating the requirements of § 817.150, and the issue is one "capable of repetition, yet evading review" as in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).
Industry's claim notwithstanding, the Secretary's withdrawal of the regulation was not a clever manipulation of regulatory and appellate procedure designed to escape review; it was merely a prudent response to the district court's remand order. Although the road reclamation requirement is certainly "capable of repetition," if and when the Secretary repromulgates § 817.150, the regulation will be reviewable at that time. Unlike the ICC order at issue in Southern Pacific, SMCRA regulations are in no danger of expiring before judicial review is complete. It would be entirely inappropriate for this court to do as Industry suggests and issue an advisory opinion to guide the Secretary's rulemaking.
3. Jurisdiction over Processing and Support Facilities
Industry appeals the district court's statutory interpretation of the Secretary's authority under § 701(28)(A) and the court's alternative holding that there is authority under § 701(28)(B) for the Secretary's jurisdiction over processing and support facilities. Without reaching the statutory question at issue in § 701(28)(A), we affirm the court's judgment based on the authority given to the Secretary in § 701(28)(B).
SMCRA gives the Secretary jurisdiction over "surface coal mining operations," which are broadly defined by § 701(28)(A) as including "activities conducted on the surface of lands in connection with a surface coal mine.... Such activities include ... in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation, loading of coal for interstate commerce at or near the mine site." Id. (emphasis added). For its part, the companion subsection, 701(28)(B), states that "surface coal mining operations" include
SMCRA § 701(28)(B) (emphasis added).
Based on his reading of § 701(28), Secretary Andrus promulgated regulations governing environmental impacts from offsite coal preparation plants. See 30 C.F.R. § 785.21 and Part 827 (1979). The regulations were initially upheld by Judge Flannery in 1980, PSMRL I (Round II), 19 E.R.C. at 1501; and following the remand of the entire case in February 1983, Secretary Watt repromulgated essentially the same regulations. See 30 C.F.R. §§ 700.5, 785.21 & Part 827 (1984). It is this repromulgation and the Secretary's supporting justification that are now before us.
When repromulgating the regulations, Secretary Watt recognized that
48 FED.REG. 20392 (1983). Secretary Watt opted for the broader view of his jurisdiction in light of his policy of exercising the most complete jurisdiction available under the Act, see id., and also in reliance on Judge Flannery's 1980 holding that the "at or near" language modified only "the loading of coal." PSMRL I (Round II), 19 E.R.C. at 1501. In addition, Watt found support for his interpretation in Judge Flannery's alternative holding that § 701(28)(B) provides an independent basis for jurisdiction in that it extends the Secretary's authority to "processing areas" and other areas that contain sited structures and facilities "resulting from or incident to [activities identified in § 701(28)(A)]." 48 FED.REG. 20393 (1983).
Industry challenges the Secretary's construction of the statutory language, contending that the Secretary's jurisdiction extends only to coal processing facilities located "at or near the mine site." Under this reading of § 701(28)(A), the phrase "at or near the mine site" modifies the entire family of post-extractive activities set off from the earlier extractive activities by the "and" that precedes their enumeration. Therefore, the argument goes, the Secretary may regulate only the cleaning, concentrating, or other processing or preparation of coal that takes place at or near the mine site. Section 701(28)(B) does not, in
The district court, faced with an issue it had already decided once, not surprisingly reaffirmed its earlier decision sustaining the Secretary's regulations. PSMRL II (Round I), 21 E.R.C. at 1199-1203. The court observed that each activity in subsection (A) is separated by a comma, and therefore concluded the phrase "at or near the mine site" refers only to the activity following the preceding comma — the loading of coal. Once again, the district court held that the Secretary had jurisdiction to regulate off-site processing plants based on the reference to "processing areas" in § 701(28)(B). PSMRL II (Round I) at 1200. Industry appeals.
All parties, including Industry, seem to agree that the language of § 701(28)(A) lends itself to two possible readings. Industry believes its parsing of the statute is "clearly better,"
We tend to agree with Industry that reading the "at or near" language as modifying "processing" is the "clearly better" interpretation of subsection (A), but that is not to say that it is the only permissible construction. See Young v. Community Nutrition Inst., 476 U.S. 974, 106 S.Ct. 2360, 2364, 90 L.Ed.2d 959 (1986) ([respondents'] reading of the statute may seem to some to be the more natural interpretation, but the phrasing of [the statute] admits of either respondents' or petitioner's reading); Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82. The Secretary's reading is not implausible: it finds at least some support in both the language and the legislative history of the Act. Nonetheless, whether his reading exceeds the bounds of reasonableness appears to us a close question. In any event, it is not a question we need decide since we find the Secretary may clearly base his jurisdiction over coal processing facilities on the broad language of § 701(28)(B).
At issue in the interpretation of § 701(28)(B) is the scope of "processing areas ... and other areas upon which are sited structures, facilities or other property or materials on the surface resulting from or incident to such activities." The phrase "such activities," as all parties agree, refers to the activities listed in subsection (A). The Industry contends, as we have
Although he rejected the notion that § 701(28)(A) limits his jurisdiction to processing facilities located "at or near the mine site," the Secretary has concluded in a separate regulation that the "resulting from or incident to" language in subsection (B), which modifies "areas upon which are sited structures, facilities, or other property or material on the surface," connotes an element of proximity. 30 C.F.R. § 701.5 (1984). The district court struck down this regulation, concluding that Congress had mandated a functional or causal test. The court pointed out that in other parts of § 701(28), Congress used phrases such as "in situ," "at or near the mine site," or "adjacent" when it wanted to express a proximity limitation. The court therefore found an intent to preclude a proximity test in Congress' choice of "resulting from or incident to," language that is not explicitly "geographic."
Industry argues that the meaning of the phrase at issue is ambiguous and that under Chervon the agency must be allowed a reasonable interpretation, especially when the issue involves "industrial practices of great complexity."
4. Alluvial Valley Floors Performance Standards
Both the Secretary and Industry appeal the district court's finding that the Secretary must establish minimum standards to preserve or reestablish the essential hydrological functions of alluvial valley floors ("AVFs"). We affirm, albeit on a different rationale, the district court's conclusion.
The Secretary has promulgated regulations pursuant to SMCRA to control coal mining on certain AVFs. An AVF is a deposit on the floor of a stream laid by running water. It is often an integral part of irrigation-based agricultural activity. The importance of AVFs is especially marked in the West, where they are the "productive lands that form the backbone of the agricultural and cattle ranching economy in [arid and semiarid] areas." H.R.REP. NO. 218, 95th Cong., 1st Sess. 116 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 649.
The Surface Mining Act, in § 515(b)(10), requires of all mine operators the following performance standard:
The Secretary has interpreted this language literally and implemented regulations that apply the performance standard to all alluvial valley floors. 30 C.F.R. §§ 822.11, 822.13(a)(1) (1984). Industry challenges the regulations as inconsistent with the permit application requirement set forth in § 510(b)(5), which requires a permit applicant to show that his proposed operations will not disrupt alluvial valley floors in the western United States that are significant to farming.
We agree with the district court's conclusion — though not necessarily its rationale — and hold that the Secretary's interpretation of § 515(b)(10), as manifested in his regulations, is reasonable and entitled to deference. See Chevron, 467 U.S. at 842-43,
Industry's position is grounded on an erroneous view of the relationship between the permit requirements set forth in § 510 and the performance standards of § 515. By contending that the Secretary has ignored the "statutory exemption" of § 510(b)(5), Industry suggests that it is somehow anomalous for the Secretary to presume that Congress provided a different level of protection at the permit stage than it did after mining operations commence. But it seems entirely plausible to us that Congress could have intended just that, i.e., to protect all alluvial valley floors in arid and semiarid areas with a performance standard while also providing special protection at the permit stage for those alluvial valley floors significant to farming. Under the Secretary's interpretation, then, § 510(b)(5) is not an exception to the performance standards in § 515, but rather a supplement. It is an additional guarantee that, at least with respect to particularly important alluvial valley floors (those significant to farming), mine operators will fully anticipate at the outset what is required for compliance with the Act's performance standards. Although the legislative history cited by Industry clearly supports the notion that Congress intended special protection for farms dependent on alluvial valley floors, it does nothing to refute the notion that other alluvial valley floors are also subject to protection, albeit not at the permitting stage. In light of the foregoing, we reject Industry's challenge and uphold the Secretary's reasonable construction of the statute.
5. Substantial Legal and Financial Commitment
Under § 522 of the Act, state regulatory authorities may designate an area of land as unsuitable for surface coal mining either because reclamation is not feasible or because mining operations might have one of the serious consequences listed in § 522(a)(3). But § 522 contains a grandfather clause that exempts, inter alia, lands where "substantial legal and financial commitments" in mining operations were in existence prior to January 4, 1977.
30 C.F.R. § 762.5 (1984).
We are asked by Industry to overrule the district court, but we do not. We affirm the district court's upholding of the Secretary's power to promulgate § 762.5. Relying heavily on the legislative history of
H.R.REP. NO. 218, 95th Cong., 1st Sess. 95 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 631. The Secretary's definition closely tracks this language; however, Industry objects to the Secretary's decision to limit SLFC to situations involving long-term contracts, claiming that the House Report used long-term contracts merely as an example of the sort of commitment required.
It may well be possible to read the House Report as Industry suggests, but it is also certainly possible, and indeed more natural, to interpret it as the Secretary has. Nevertheless, Industry would have us believe that the legislative history of the "valid existing rights" clauses in § 522(e) and § 601, as well as selected discussions of a similar phrase in § 510(b)(5), mandates its reading of the House Report and accordingly its broad interpretation of SLFC. We disagree and conclude with the district court that, at best, the legislative history of the other provisions of the bill creates some ambiguity — perhaps enough to support Industry's position had it been adopted by the Secretary. But it is far from sufficient to constitute a specific legislative intent contradicting the Secretary's interpretation. Congress has evidently delegated to the Secretary the authority to flesh out the meaning of "substantial legal and financial commitments," see Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82, and the Secretary has done so in an entirely reasonable fashion, balancing the financial interests of the mine operators against the public's interests in prohibiting mining where it is environmentally unsuitable. Accordingly, we affirm the judgment below on this issue.
E. Residual Issues II
We consider under this heading 11 district court rulings. We affirm the district court's decision to uphold the Secretary's regulations with regard to six: those dealing with continually-created valid existing rights; with the replacement of damaged water supplies; with the exemption from water replacement for holders of senior water rights; with anticipated mining; with the temporary storage of top soil; and with jurisdiction over air quality issues. We affirm the district court's decision to remand the Secretary's regulations to the agency with regard to two other rulings: those dealing with values incompatible with surface mining and authority to grant variances from approximate original contour requirements. Finally, we reverse the district court and reinstate the Secretary's regulations with regard to three regulations: those dealing with the elimination of underwater highwalls; with jurisdiction over support facilities issues; and with the delegation of federal lands.
1. Continually-Created Valid Existing Rights.
Section 522 defines standards and procedures for designating certain lands as unsuitable for surface coal mining. For the most part, Congress delegated the making
Congress, however, limited the application of the surface mining proscriptions to avoid infringement of existing property rights. "After the enactment of this Act and subject to valid existing rights no surface coal mining operations except those which exist on the date of enactment of this Act shall be permitted ..." SMCRA § 522(e). Neither the statutory language nor the legislative history elaborate on the meaning of the phrase "valid existing rights" ("VER"). The Secretary, however, promulgated a regulation implementing § 522(e) that created what he described as "continually created valid existing rights," 47 FED.REG. 25281 (1982):
30 C.F.R. § 761.5(d). In other words, even after the enactment of the Act, once a mining operation is properly initiated on a
NWF's argument is, essentially, that a "continually-created valid existing right" is an oxymoron, and that to assign any meaning to VER other than "existing as of the date of enactment" is arbitrary and contrary to the intent of Congress. Under NWF's reading of the Act, any mining operation initiated after August 3, 1977, the date of SMCRA's enactment, would be subject to shut-down if the land on which it stood or abutted were subsequently found to be unsuitable under the provisions of § 522(e). The district court rejected this challenge and concluded that the concept of continually-created VER was "in accord with law." PSMRL II (Round III-VER), 22 E.R.C. at 1564-65.
Industry, supporting the district court, argues that once an operator has obtained mining rights and a permit for a particular parcel of land that has not yet been declared unsuitable, any subsequent infringement of that mining right, i.e., because of a declaration of unsuitability under § 522(e), would constitute a taking. Since Congress explicitly tried to avoid takings in § 522(e), once a permit has been validly issued the permit area is insulated from subsequent unsuitability designations. This, however, is a somewhat circular argument; one could just as easily argue, as NWF does, that after the passage of the SMCRA mine operators are put on notice that certain kinds of lands are subject to the protections of § 522(e), and that they make their investments subject to that risk. For example, a mine operator could purchase a 300-foot buffer zone around the mine to protect that mine site from the § 522(e) protections triggered by proximity to dwellings, roads, cemeteries, etc. Both "notice" arguments presuppose particular, opposing interpretations of the statutory language; neither aids us in choosing between them.
The statutory language appears to be susceptible to either interpretation of "valid existing rights." The legislative history, however, is of some help. Although it does not answer the specific question before us,
That same principle should reasonably apply to the unsuitability designations of § 522(e), and is indeed the basis for the Secretary's VER regulation. As the House report noted, when land on which mines are already in existence is declared unsuitable, those mines should be allowed to continue, but no new mines should be permitted within the protected area. That rule should apply equally to mines in existence as of August 3, 1977, or to mines subsequently started on lands which have permits approved for mining. Thus, if a site not previously designated unsuitable were to be declared to be subject to § 522(e) protection — e.g., if the site which was not covered by § 522(e) in 1977 were subsequently included within the National Historic Register, but not before a mining operation had been lawfully established — the prohibition
2. Values Incompatible with Surface Mining.
Section 522(e)(2) prohibits coal mining operations on any federal lands within the boundaries of any national forest.
30 C.F.R. § 761.5. NWF challenged this regulation, claiming that to allow mining anytime the land could be properly reclaimed would upset the balance among uses of public lands established by Congress in the Act, and would render § 522(e)(2) redundant: § 522(a)(2) independently requires that all lands for which reclamation is not technologically or economically feasible be declared unsuitable for mining.
The Secretary defended his regulation before the district court, arguing that it was responsive to Congress' recognition that national forests have multiple land uses, which include mining, and that the reclamation requirement of the regulation guaranteed that the mining use would be a temporary one.
48 FED.REG. 41317 (1977).
The district court correctly rejected the Secretary's argument that "temporary interruption[s] of important activities" were permissible within national forests, and concluded that by focusing on whether the land may eventually be reclaimed, the Secretary's regulation ignores explicit congressional direction to preserve lands in national
S.REP. No. 128 at 55 (emphasis added). We could not hope for a more clear statement from Congress that the ability to reclaim the land may not be the only test for compatibility. Moreover, elementary principles of statutory construction dictate that we not construe one section of the statute so as to make another superfluous.
On appeal, the Secretary seems to have shifted his position, and now argues not that reclaiming alone will make a mining operation "compatible" with other values, but that the plain language of the regulation requires that the regulatory authority consider as well whether other values may coexist with stripmining for any period of time.
S.REP. No. 128 at 55.
Congress did not write a statute that required the Secretary to make sure that in the long-term the national forests be available for some use other than mining. Section 522(e)(2) of the SMCRA specifically declared national forests to be off limits to stripminers, except insofar as the Secretary could determine that the preferred uses of those lands were not interfered with by the mining operations. By saying that lands in national forests may be taken over for mining and occupied for the forty to fifty years that a coal mining and reclamation operation may take, without any consideration
3. Replacement of Damaged Water Supplies by Operators of Underground Mines.
The Act requires that, under certain circumstances, mine operators replace any water supplies that they damage.
SMCRA § 717(b). In 1979 Secretary Andrus promulgated regulations requiring operators of all mines, surface and underground, to replace damaged water supplies. 44 FED.REG. 15430 (1979). On review of a challenge by Industry, the district court struck down those regulations as exceeding statutory authority, because § 717(b) only mentions operators of surface coal mines, and no other provisions of the Act authorized the Secretary to compel replacement of water damaged by underground operators. PSMRL I (Round II), 19 E.R.C. at 1495. In 1983 Secretary Watt promulgated new regulations that did not require underground mine operators to replace damaged water supplies. NWF challenged these regulations, arguing both that the terms of § 717(b) require underground operators to replace damaged water supplies, and that a similar replacement requirement can be inferred from the permitting requirements of § 508(a)(13) of the Act.
a. The Unplain Meaning of Section 717(b)
The issue of whether underground mine operators are covered by the water damage provision arises because of the confusing terminology used by the drafters of the SMCRA. In some places in the statute, the phrase "surface coal mining operation" is used, e.g., §§ 502(a)-(c), (e), (f), which the Act defines as:
SMCRA § 701(28) (emphasis added). In other portions of the Act, reference is made to "operators of surface coal mines," § 502(d); § 717(b), or to a "surface coal mine operation," § 717(b). These terms are not specifically defined. NWF suggests that the various terms are used more or less interchangeably. Industry and the Secretary, on the other hand, assert that the different phrases consciously distinguish between provisions applicable to both surface mines and underground mines with surface effects ("surface coal mining operations"), and those applicable only to surface mines ("surface coal mine operation" or "operators of surface coal mines").
The Act clearly contemplates, at least for some purposes, that surface coal mines will be treated differently from underground coal mines, even though the latter have some surface effects. See e.g., SMCRA § 516(d) (accommodating "distinct differences between surface and underground coal mining"). The most natural reading of the statute as a whole, and the definition in § 701(28) in particular, then suggests that "surface coal mining operations" encompasses both surface coal mines and the surface effects of underground coal mines; but that the term "surface coal mines," by
The history of the SMCRA confirms that Congress consciously distinguished between requirements applicable to surface mines and underground mines, and that water replacement was not specifically required by statute for operators of underground mines. Senate bill S.7 included a water replacement requirement in § 415(b)(10)(E), a provision detailing the performance standards applicable to surface mines. The parallel provision for underground mines, § 416(b)(9), omitted the water replacement requirement. See S.REP. No. 128 at 25, 29. The Senate report demonstrates that § 416 represented the Senate committee's judgment of which § 415 surface mining requirements should also apply to underground mines.
S.REP. No. 128 and 84 (emphasis added).
We conclude from the text as well as the legislative history of the water replacement provision, and from other provisions distinguishing between surface and underground mining, that Congress explicitly recognized the difference between surface and underground mines; that it deliberately chose to apply some environmental safeguards to one and not the other; and that water replacement is a provision it explicitly required only of surface mine operators. The Secretary's implementing regulations were reasonable and consistent with that legislative intent.
b. The "Puzzling Contradiction" of Section 508(a)(13)'s Permitting Requirements
NWF raised another challenge to the Secretary's new regulation, arguing that § 508(a)(13) independently requires underground mine operators to replace damaged water supplies. That section, describing the information that must be included in the reclamation plan accompanying a permit application, requires, "in the degree of detail necessary to demonstrate that reclamation required by the State or Federal program can be accomplished":
SMCRA § 508(a)(13). NWF argued, and the district court agreed, that the permit information requirements of § 508 apply to underground mines. The court rejected NWF's further argument, however, that § 508(a)(13)(C) should be read to require underground mine operators to replace damaged water supplies. Admitting that the language of that section could pose a "puzzling contradiction" to § 717(b)'s provisions requiring only surface mine operators to replace damaged water, the court read § 508 merely "to require a description of steps to be taken to implement actual performance standards in the Act." PSMRL II (Round III), 620 F.Supp. at 1533. We affirm.
Section 508 is essentially an information-gathering provision. It seeks to ensure that regulatory authorities have sufficient information on hand when they evaluate permit applications. Although the House report described the reclamation plan required by § 508 as a "blueprint for action," H.R.REP. No. 218, 95th Cong., 1st Sess. 91 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 628, it never suggested that § 508 independently imposed substantive performance standards. Rather, the House report identified the lack of sufficient data during the review process as the evil that § 508 was designed to address:
Id. (emphasis added). The Conference Committee report similarly referred to the final version of § 508 as "specif[ying] that a wide range of information and analysis be included" in the reclamation plan. H.R.CONF.REP. No. 493, 95th Cong., 1st Sess. 103 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 734-35. We can find no support for the claim that an independent performance requirement was implied by § 508.
A more credible claim could be made that § 508(a)(13)(C), by requiring both surface and underground mine operators to provide a description of their plans to provide alternate sources of water where protection of the water supply cannot be assured, authorizes the Secretary to do something with that information, i.e., to require underground mine operators to replace damaged water supplies, or to allow state regulatory authorities to require from underground mine operators, as a permit condition, commitments to replace damaged water supplies. But even under that interpretation, the Secretary would not be compelled to impose a water replacement requirement on underground mine operators, since SMCRA clearly affords the Secretary wide discretion in the application of permit requirements to underground mines. Section 516(d) directs the Secretary to accommodate the distinct difference between "surface and underground coal mining," through modifications to permit and bond requirements otherwise applicable to both types of mines. In fact, Secretary Watt relied on that discretion to exempt underground mine operators from the information requirements of § 508(a)(13)(C).
4. Exemption from Water Replacement Requirements for Holders of Senior Water Rights
This issue involves the meaning of § 717(a) of the SMCRA, which provides that:
The interpretation of this provision is required by a challenge to a regulation promulgated to implement § 717(b), quoted supra. The Secretary's regulation essentially mirrored the statutory language. See 30 C.F.R. § 816.41(h). Industry challenged that regulation, arguing that § 717(a) exempted mine operators who had senior water rights from the § 717(b) water replacement requirements and that the regulation failed to reflect this limitation. During the course of litigation before the district court, the Secretary rejected this argument, but reinterpreted his regulation to exempt the legitimately exercised senior water rights of miners.
PSMRL II (Round III), 620 F.Supp. at 1525 (quoting Secretary's Response, at 6) (emphasis added). Industry accepted that interpretation and withdrew its challenge to the regulation. NWF, as intervenor, then challenged the new interpretation, arguing that § 717(a) did not apply to mine operators at all and thus that there ought to be no exemption for miner's senior water rights, whether or not legitimately exercised. NWF asserted that § 717(a) is a savings provision that allows afflicted water users to retain whatever remedies state law affords them against anyone who damages their water supplies — including mine operators — in addition to the water replacement remedy created by § 717(b) of the SMCRA. The district court rejected this challenge and upheld the regulation as interpreted by the Secretary. PSMRL II (Round III), 620 F.Supp. at 1525.
NWF's characterization of § 717(a) as a "savings provision" is accurate; but it errs in identifying what and whose rights are being saved. It is clear from the legislative history that the "applicable" laws referred to are state laws. H.R.REP. No. 218, 95th Cong., 1st Sess. 181 (1977), reprinted in U.S.CODE CONG. & ADMIN.NEWS 593, 712.
5. Cumulative Hydrologic Assessment — What is "Anticipated Mining"?
In order to promote better planning, Congress required regulatory agencies to consider all "anticipated mining" within a given area each time a permit was to be issued. SMCRA § 510(b)(3); H.R.REP. No. 218, 95th Cong., 1st Sess. 113 (1977), reprinted in U.S.CODE CONG. & ADMIN.NEWS 593, 646. That way regulators could require the operators to implement hydrologic safeguards now, to make allowances for mining expected in the future. The planning requirement was implemented by requiring permit applications to include
SMCRA § 507(b)(11). No permit can be approved unless "the assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in § 507(b) has been made by the regulatory authority and the proposed operation thereof has been designed to prevent material damage to hydrologic balance outside the permit area." SMCRA § 510(b)(3).
Secretary Watt promulgated regulations defining "anticipated mining" to mean:
30 C.F.R. § 701.5. NWF challenged parts (c) and (d) of the definition, arguing that they impermissibly limited the scope of the cumulative hydrologic assessment by restricting the inquiry to those mines for which data was available.
SMCRA § 507(b)(11). The district court deferred to the Secretary's expertise on technical matters, finding that the narrow definition of "anticipated mining" represented a thoughtful response to concerns raised in the administrative record. PSMRL II (Round III), 620 F.Supp. at 1532.
As part of the permitting process, Congress required that the cumulative hydrologic effect of current and anticipated mining be taken into account. SMCRA § 510(b)(3). The goal of such a requirement is more rational planning at earlier stages.
S.REP. No. 128 at 113. If regulatory authorities, in deciding whether to grant a permit and what kind of hydrologic safeguards to require, were only to consider existing mines and the specific operation being applied for, a less than optimal allocation of permits would result. Those who applied for permits later might have to be turned down, because earlier mines were not required to incorporate hydrologic safeguards that would have made it possible to allow more coal to be mined from that area. Alternatively, hydrologic protection standards would have to be lowered to allow more mines to operate in a given area, damaging the environment. Both options would be predictable, yet undesirable, consequences of regulatory shortsightedness.
The Secretary's decision to exclude from the definition of anticipated mining lands for which some steps may have been taken toward eventual mining, but in which no permit had yet been applied for, constitutes quintessential line-drawing. At some point between the time that a potential mine site is merely a gleam in an operator's eyes and the time when commercial coal is finally extracted from the mine, that site must be considered "anticipated mining." But precisely where that line should be drawn requires expert administrative judgment about the way in which hydrologic assessments may be carried out. The Secretary, after review of comments submitted in response to a broader proposed definition, issued the final rule quoted above, and explained that he wanted to avoid the difficulty of requiring data about hypothetical mines which might render the regulator's assessments speculative and meaningless. 48 FED.REG. 43958-59 (1983).
Similarly, the Secretary determined that it is highly speculative whether lands under federal coal leases, even those subject to diligent development requirements, will ever actually be mined. There is no legal requirement that lessees mine the land; the only consequence of not mining within the ten-year due diligence period is termination of the lease, 43 C.F.R. § 3483.2(a). Thus, the decision whether to mine in each case will be made by the leaseholder primarily in response to market conditions. The Secretary's regulation attempts to impose some limit on free-ranging speculation about which federal lands may or may not be mined, by defining as "anticipated mining" only those federal coal lands for which there is actual mine development information available.
6. Elimination of Underwater Highwalls.
Highwalls are vertical walls of exposed overburden and coal that remain after an excavation. Congress expressed great concern about these dangerous and unsightly by-products of stripmining
The Secretary nonetheless promulgated regulations that permitted vertical highwalls to remain in permanent water impoundments (where such impoundments were provided for in the mining permit), so long as "[t]he vertical portion of any remaining highwall shall be located far enough below the low-water line along the full extent of the highwall to provide adequate safety and access for the proposed water users." 30 C.F.R. § 816.49(a)(9).
The Secretary argued that the SMCRA explicitly makes water impoundment subject to the grading requirements of § 515(b)(3). Although the Act assuredly requires that operators restore mined land to its AOC, including the elimination of highwalls, AOC itself is defined as follows:
SMCRA § 701(2) (emphasis added). Thus permanent water impoundments could reasonably be seen as subject not to the general grading requirements of § 515(b)(3), but to the particular ones of § 515(b)(8).
The district court did not dispute the Secretary's contention that water impoundments constitute a third specific variance from AOC requirements (in addition to those found in § 515(c), (e)). However, because the other two AOC waivers in the Act explicitly mandate the elimination of highwalls, and because the section of the Conference Report dealing with the AOC variance applicable to steep slope mining emphasized Congress' concerns about highwalls, the district court concluded that Congress meant the highwall elimination requirement to apply to water impoundments as well.
The Act, however, on its face, does not support the district court's interpretation. Unlike the other two AOC variances, the water impoundment grading requirements do not include a highwall elimination requirement. Instead, an operator wishing to create a permanent water impoundment must show, among other things, that "final grading will provide safety and access for proposed water users." SMCRA § 515(b)(8)(E).
NWF argues, and the district court held, that the ubiquitous requirement that highwalls be eliminated should be read into a provision where it was left out. Industry and the Secretary argue the contrary, that Congress included the requirement precisely in those provisions where it meant to do so.
7. Temporary (but Long-Term) Storage of Top Soil.
Coal mining involves removing large volumes of top soil from the mine site; if the site is to be effectively reclaimed later, that topsoil must be stored in some fashion that will not destroy its productive properties. Congress took care to require that operators
SMCRA § 515(b)(5). In 1983, the Secretary promulgated regulations permitting the
30 C.F.R. §§ 816.22(c)(3), 817.22(c)(3).
NWF's challenge in the district court and again on appeal revolves around its claim that there is no evidence that such topsoil distribution will not damage either the topsoil, the host soil, or both. Therefore, it argues, a nationwide program of host soil storage should not have been undertaken; instead, an experimental pilot program should have implemented under § 711.
No one disputes that this is a highly technical issue. The Secretary, on the basis of studies of the relationship between soil depth and productivity, made a determination that under certain conditions, distribution of topsoil over a broad area was preferable to stockpiling, which is known to adversely affect soil productivity. The Secretary promulgated these regulations on the basis of technical reports, and comments on a proposed version which he ultimately modified. 48 FED.REG. 22096 (1983). There is no requirement in the SMCRA, or elsewhere, that the Secretary institute pilot programs prior to implementing regulatory schemes. Moreover, the challenged regulations do not mandate host soil storage, but merely make it available under limited circumstances. NWF's arguments that there are no studies actually proving that such a form of storage will not do any harm are unavailing. This is precisely the sort of issue on which a court should defer to agency expertise.
8. Authority to Grant Variance from AOC Requirements.
The Act's general AOC requirements are set out in § 515(b)(3), which requires "all surface coal mining operations"
The Act also allows for variances from AOC requirements under certain circumstances. See section 6, supra. Section 515(c) describes conditions under which surface mining operations may be permitted "without regard to the requirement to restore to approximate original contour set forth in subsection 515(b)(3) or 515(d)(2) and (3)." SMCRA § 515(c)(2). Section 515(e) also provides for variances from some AOC requirements. The question before the court is whether the variance power described in § 515(e) extends to all surface mining, or only to steep slope mining. That section provides:
SMCRA § 515(e) (emphasis added).
The district court concluded, as it had in 1980, that § 515(e)(1) did not actually grant a variance, PSMRL II (Round II) 620 F.Supp. at 1511-15
We too find it necessary to turn to the legislative history for illumination of what this curiously worded statutory provision was intended to accomplish. The variance provision was introduced as an amendment to S.7 by Senator Wendell Ford. He specifically noted that his amendment was meant to cover steep slope mining. 123 CONG.REC. 15233-34 (1977). Senator Jennings Randolph, who had independently planned to introduce a similar amendment, co-sponsored the Ford amendment and introduced into the record prepared remarks indicating that his amendment was meant to apply to non-steep mining as well. 123 CONG.REC. 15710 (1977). In Conference, a compromise resolving a controversy about whether to require complete elimination of highwalls even from those operators who had obtained AOC variances, led the Committee to turn to the Randolph amendment as a base from which to work; that amendment had been intended to apply to steep and non-steep mining, and explicitly referenced sec. 515(b)(3).
The bill that emerged from Conference, however, deleted the reference to the general AOC requirements of § 515(b)(3). H.R.CONF.REP. No. 493 at 55-56. No explanation for the deletion was offered, and the Conference Committee report discussed the AOC variance found in § 515(e) in the section of the report dealing with steep slope mining, rather than in the general standards section. Id. at 108-09. Senator Lee Metcalf, in reporting the text of the Conference Committee bill back to the Senate noted the concerns of landowners in "mountainous areas" that "steep slope performance standards" in the bill would preclude some beneficial land uses: "In recognition of this need, the conference report modifies the standards so as to allow retention of strip mine benches." 123 CONG.REC. 23609-10 (1977).
Since the passage of SMCRA, one Secretary of Interior has interpreted the statutory language to create only one variance, for steep slope mining, 44 FED.REG. 15312 (1979); another has promulgated regulations allowing both steep and non-steep slope mining operators to apply for and receive variances from AOC requirements,
Ultimately we rely on the text of § 515(e)(2) which specifically states that variances may be granted from the AOC requirements of § 515(d)(2), the steep slope mining provision; it does not, as enacted, state that non-steep slope mining AOC requirements may be waived or excused, and
9. Jurisdiction over Nonerosional Aspects of Air Quality.
One of the Act's performance standards aimed at environmental protection requires that all surface coal mining and reclamation operations "stabilize and protect all surface areas including spoil piles affected by the surface coal mining and reclamation operation to effectively control erosion and attendant air and water pollution." SMCRA § 515(b)(4). In 1979, Secretary Andrus interpreted this section to require operators to engage in pervasive control of air pollution from all their mining operations. He found that fugitive dust associated with surface mining activities constituted a public health and safety problem, and promulgated regulations requiring mine operators to control air quality. 44 FED.REG. 15050 (1979). The district court struck down this regulation as unauthorized by the Act, and on remand, Secretary Watt repromulgated a regulation requiring operators to control only the impacts of mining on air quality due to erosion. 48 FED.REG. 1160 (1983).
NWF has challenged the new regulation, arguing that the Act requires the Secretary to regulate all air pollution attendant to surface mining operations. NWF stakes its claim on an alternate reading of § 515(b)(4), and on the legislative history of a similar provision in an earlier draft of the Act. The district court reaffirmed its prior reading of the Act, and upheld the regulations. PSMRL II (Round I), 21 E.R.C. at 1206-07. For the reasons stated below, we affirm the district court's decision.
NWF argues that the words "to effectively control" refer both to "erosion" and "pollution"; "attendant" then, would modify "air and water pollution" and not "erosion." Under their suggested reading, an operator is under two separate duties: to control erosion and to control the air and water pollution attendant to mining operations. But the very articulation of such an interpretation suggests how strained it is: if Congress had intended to regulate "the air and water pollution attendant to the surface mining operation," Brief for Appellants NWF at 38, it could easily have constructed the sentence that way. Instead, the statute was written to regulate "erosion and attendant air and water pollution." The Secretary's interpretation of the statutory language, that only pollution occasioned by erosion is regulated by this statute, is more reasonable than that propounded by NWF.
NWF also cites to the House Report accompanying a 1974 version of the Act, in which a provision quite similar to § 515(b)(4) was described as requiring operators to "stabilize and protect all surface areas including spoil piles to control air and water pollution." H.R.REP. No. 1072, 93d
Congress did, however, clearly state that nothing in the SMCRA should be contrued as "superseding, amending, modifying, or repealing" various statutes, including the Clean Air Act, 42 U.S.C. § 1857, or regulations promulgated thereunder. SMCRA § 702(a)(4). We have previously interpreted this provision as limiting the Secretary, when otherwise exercising his lawful authority under the Act, to promulgate regulations that fill a "regulatory gap" in the coverage of another statute. SMRL, 627 F.2d at 1367. The Environmental Protection Agency has the authority under the Clean Air Act to regulate fugitive dust from coal mines, 42 U.S.C. § 7602(j); Sierra Club v. Gorsuch, 715 F.2d 653 (D.C.Cir.1983), and is in the process of reconsidering whether to do so, 51 FED.REG. 7090 (1986). Under these circumstances we do not find the requisite gap or "absence of regulation," 627 F.2d at 1367, necessary to avoid the limitations imposed by § 702(a)(4).
Thus, we conclude that the Secretary's interpretation of § 515(b)(4) is reasonable and affirm the judgment of the district court.
10. Use of Proximity as a Factor in Determining Jurisdiction over Support Facilities.
Section 701(28) defines "surface coal mining operations" for purposes of the Act as encompassing certain "activities," § 701(28)(A), and certain "areas" and "facilities," § 701(28)(B). It is the Secretary's interpretation of OSM's jurisdiction over support facilities that is at issue here. The Act refers to "areas upon which are sited structures, facilities, or other property or materials on the surface resulting from or incident to such activities." SMCRA § 701(28)(B) (emphasis added). The Secretary promulgated regulations interpreting § 701(28) that made geographic proximity to the mine site a factor in determining whether a particular facility is covered by the Act, concluding that "[r]esulting from or incident to an activity connotes an element of proximity to that activity." 30 C.F.R. § 701.5; 48 FED.REG. 20401 (1983).
NWF challenged the restriction arguing that the Act contemplates a functional rather than geographic limitation. The district court agreed and remanded the regulation, concluding that in other instances Congress has used "words of geography" such as "in situ," "at or near the mine site" or "adjacent," and its failure to do so here precluded the Secretary's interpretation. PSMRL II (Round I), 21 E.R.C. at 1202. Because the Secretary's reading led to a reduction in coverage of what was essentially a remedial statute, the district court declined to defer to the agency's construction. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 278-79, 97 S.Ct. 2348, 2365, 53 L.Ed.2d 320 (1977).
The statutory language neither plainly precludes the consideration of distance from the mine site nor dictates a functional test. The legislative history of the Act appears to provide no guidance on the specific question before us. The Secretary's definition of support facilities does not impose a strict proximity test, but rather considers both function and distance to be relevant. "Function should be weighed against distance. Depending on the kind of facility, distances may vary."
How to put into practice a "resulting from or incident to" test, without producing absurd results (i.e., subjecting to SMCRA coverage the offices of mine executives or design engineers in another state and nowhere near the actual mine site) is something we should leave in the first instance to the officials entrusted to implement and enforce the Act's mandate. Thus, we reverse the judgment of the district court and reinstate the Secretary's regulation.
11. Delegability of Secretary's Authority over Federal Land Mining Permits.
SMCRA envisions substantial cooperation between state and federal regulators in order to protect the environment, while accommodating the diverse terrain, climate and other conditions throughout the various states. "Congress preferred to leave primary governmental responsibility with the states ... but skepticism about the states' willingness to implement the federal program justified the Secretary's continuing oversight role." PSMRL I, 653 F.2d at 520. Under this cooperative approach, state agencies are expected to regulate all non-federal lands within the state, unless they surrender their regulatory functions to the Secretary, who will then implement a federal program thereon. SMCRA § 504(a). Those states that do set up regulatory programs covering non-federal lands may enter into cooperative agreements with the Secretary to regulate coal mining on federal lands located within the state as well, provided they are found qualified to do so, and that certain specified regulatory functions are retained by the Secretary. SMCRA § 523(c). At issue here is Secretary Watt's interpretation of one regulatory function deemed by Congress to be non-delegable.
SMCRA § 523(c) (emphasis added). Although the "mining plans" referred to above are not defined anywhere in the Act, all parties are in agreement that they refer to those required by the Mineral Lands Leasing Act (MLLA), as amended by the Federal Coal Leasing Amendments Act of 1976, Pub.L. No. 94-377, 30 U.S.C. § 202a(2). The MLLA requires that a mining plan include an operation and reclamation plan, 30 U.S.C. § 207(c), but does not explicitly define its contents.
In 1979, Secretary Andrus promulgated regulations that defined "mining plans" to include the SMCRA reclamation plan requirements; consequently, review of SMCRA permit applications for federal lands became non-delegable under § 523(c). 44 FED.REG. 14975-77 (1979). In 1983, however, Secretary Watt redefined mining plans to include only those requirements set out by MLLA regulations, taking the approval of SMCRA permits out from under the non-delegable prescription. NWF challenged the 1983 regulation and the district court sustained that challenge, thereby requiring a return to a "dual system of review" whereby the Secretary must review the SMCRA operation and reclamation plan as part of its non-delegable duty to review "mining plans," even if a state,
The district court reasoned that the SMCRA, coming on the heels of the MLLA amendments, must have meant to clarify the meaning of "reclamation plan" in the MLA's definition of mining plan: "once SMCRA became law, the gap in definition that previously existed was filled in emphatic terms." Id. at 1196. But this approach ignored the explicit requirements of the SMCRA, that "[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing" the MLLA, as amended, or any rule or regulation promulgated under it. SMCRA § 702(a)(8). If the SMCRA cannot amend or modify the MLLA, it cannot define or redefine one of the operative terms of the earlier statute.
Nonetheless an issue of interpretation still remains. NWF argues, in defense of the district court judgment, that when Congress enacted the SMCRA it intended to make non-delegable the approval of MLLA plans as defined by the applicable regulations then in place.
Despite the intuitive appeal of drawing on contemporaneous interpretations of vague or ambiguous statutory terms, NWF's argument does not finally persuade. Any alleged similarity between the MLLA mining plan regulations in force in 1977 and the permitting requirements of §§ 507-508 of the SMCRA notwithstanding, nothing in the logic of NWF's reclamation plan compels the literal incorporation of SMCRA reclamation plan requirements into the term "mining plan" in § 523(c). Indeed the effect would be to reinstate the 1977 MLLA regulations, since rewritten, when it is clear that SMCRA may not revise MLLA regulations anymore than it could modify MLLA statutory terms. SMCRA § 702(a)(8). NWF's argument basically goes to the Secretary's action in taking the teeth out of MLLA requirements; unfortunately its challenge is directed at the wrong set of regulations.
The legislative history of the Act also supports the view that Congress intended a cooperative system of regulation with a substantial role for the states, rather than a dual review process. The 1977 version of the Act, unlike earlier, vetoed bills, contemplated state regulation of federal coal lands under cooperative agreements. The Senate Committee Report clarified the intent of the Act's federal lands provision:
S.REP. No. 128 at 95 (emphasis added). The Secretary's interpretation of the statute remains faithful to this expression of congressional intent: states may enter into cooperative agreements and take over the permit approval process for federal lands;
The judgment of the district court is hereby affirmed with respect to NWF's standing and the following merits issues: prime farmland and pastureland issues (III-A), bonding for damage caused by subsidence (III-B-2), alluvial valley floors (III-C-1), contemporaneous reclamation (III-C-3-a), thick and thin overburden (III-C-3-b), damage caused by subsidence (III-D-1), jurisdiction over processing and support facilities (III-D-3), alluvial valley floors performance standards (III-D-4), substantial legal and financial commitment (III-D-5), continually-created valid existing rights (III-E-1), values incompatible with surface mining (III-E-2), replacement of damaged water supplies (III-E-3), replacement requirements for holders of senior water rights (III-E-4), anticipated mining (III-E-5), temporary storage of top soil (III-E-7), authority to grant variances from AOC requirements (III-E-8), and jurisdiction over air quality (III-E-9).
The judgment of the district court is hereby reversed with respect to incremental and phased bonding (III-B-1), mine waste disposal (III-C-2), terracing (III-C-3-c), elimination of underwater highwalls (III-E-6), jurisdiction over support facilities (III-E-10), and authority over federal land mining permits (III-E-11). Finally, we find the challenge to reshaping cut and fill slopes (III-D-2) moot.
It is so ordered.
By the same token, we need not decide NWF's claim, contested by Industry, that Congress established standing-analysis causation as a matter of law in suggesting that abandoning clear federal minimum environmental standards in many instances would lead to slippage below those levels by state authorities. See, e.g., H.R.REP. No. 218, 95th Cong., 1st Sess. 85 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 622 (stating that "the committee is mindful of the past failures on the State expectation that Federal Regulations ... will fully implement the environmental performance standards").
With respect to subsidence bonding, NWF's plaintiffs allege insufficient bond coverage for damage to water supplies caused by subsidence. Industry's argument in response is that injury to NWF's affiants is "remote and speculative" because it could occur only upon the concurrence of five separate events. By way of illustrating what we regard as the empty formalism of such a dissection, we note that the final three of Industry's five "separate events" really amount to the same thing: unremediated damage. See Brief for Industry at 24 ("The absence of a subsidence bond could produce damage only ... (iii) if that subsidence causes damage, (iv) if the operator does not repair the damage, and (v) if the insurance required by § 507(f) is insufficient to repair the damage."). Industry's legal pointillism only underscores to us the importance of reading the causation requirement with an eye toward reasonableness; for if it is not so read, as Professor Tribe has noted, it becomes "highly manipulable," and focusing on it alone "poses a serious risk that in the guise of causality analysis, federal courts will engage in an unprincipled attempt to screen from their dockets claims which they substantively disfavor." See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 93 (1st ed. 1978).
With respect to flexible (or incremental) bonding, NWF's affiants allege that bond amounts are inadequate to cover the cost of reclamation. Industry's response is twofold. First, as noted in the text, it argues that the change effectuated by the Secretary is not terribly dramatic, see Brief for Industry at 24 — a point we deem irrelevant for standing analysis. Additionally, Industry challenges the two NWF affiants mentioned by name by the district court, saying that they have merely "an apprehension of maladministration" of the regulation. See Brief for Industry at 25. This argument also amounts to an attempt to homogenize merits and standing. Industry is saying that a new regulation that facially appears quite different from its predecessor is in fact so similar to its precursor that only a bungling administrator could apply the old and new regulations differently. We read the new regulation the way it sounds — that is, like a change in policy — and therefore find affiants' concern that the regulation will be implemented in accord with this reasonable reading of it to be quite realistic.
With respect to the issue of validly existing rights, NWF claims that under the Secretary's new interpretation, more mining generally will be permitted. Industry's argument in response is that both affiants cited by the district court hike in Clifty Wilderness, an area where no coal mining presently exists. See Brief for Industry at 40. We note, however, that both affiants — Oscar Geralds, Jr. and Henry Graddy, see Geralds Aff., Graddy Aff. — allege that they hike in a broader area, the Daniel Boone National Forest, that includes but is not limited to the area classified as the Clifty Wilderness. Within the Daniel Boone Forest, about 75% of the subsurface coal rights belong to third parties, according to the Forest Service, and we thus find wholly plausible affiant Geralds' concern that some of these rightholders could qualify as having valid existing rights under the 1983 regulations. See Geralds Aff.; see also Brief for NWF at 22 n. 26. Industry's argument is again that NWF's allegations are unduly speculative. This argument, like Industry's argument with respect to subsidence bonding, supra, is flawed in its attempt to disaggregate NWF's allegations into artificially separate parts. Affiants' concern about threatened injury is, quite simply, far more reasonable than is suggested by Industry's strategy of disaggregating every affiant's claim.
With respect to the issue of significant values in national forests, where NWF also contends the Secretary's new interpretation will lead to increased mining, Industry's argument is predictably that the causal connection is too lengthy. See Brief for Industry at 42. We disagree, finding in the affidavits of several NWF members simple and logical explanations that as recreational users of various national forests containing coal reserves, they fear that a broader interpretation of the "no significant values" exception will harm their interests. See, e.g., Geralds Aff.; Graddy Aff.; see also Brief for Appellant NWF at 45 & n. 52 (listing other affidavits).
With respect to dry waste, NWF's affiants fear that water supplies will suffer if waste piles are unregulated. Industry makes no counter-argument, stating only that the issue is "very complex" and that "[w]e leave that debate to the Government and NWF." Brief for Industry at 43. In light of the Secretary of the Interior's determination not to contest NWF's standing with respect to all the challenged regulations, that debate seems rather one-sided, and we join NWF and Judge Flannery in concluding that the environmental plaintiffs have standing to challenge the Secretary's new regulations.
Finally, with respect to junior water rights, NWF's affiants fear water supplies will be destroyed if the Secretary's construction of this exemption stands. In response, Industry argues, first, that the district court misconstrued the scope of the change the regulations mark from the Act itself, see Brief for Industry at 44, an argument, that, we observe again, goes to the merits of Industry's dispute with NWF. Second, Industry argues that NWF's claim is "remote and speculative" because three events must occur to trigger NWF's claimed injury, a contention that, we note still again, is foreclosed by Autolog's endorsement of standing in cases involving lengthy but plausible chains of events.
H.R.CONF.REP. No. 493, 95th Cong., 1st Sess. 105 (1977), reprinted in 1977 U.S.CODE CONG. & ADMIN.NEWS 593, 737. The passage is inapposite, having been drawn from a discussion of § 510(d) of the Act, not of § 519(c)(2). In context, the sentence explains that a mining operator can prove, as required by § 510(d), his ability to reclaim the prime farmland to be mined without actually pointing to surrounding land on which reclamation has already been achieved.
48 FED.REG. 40148 (1983).
The requirements of this part shall not apply to —
See 50 FED.REG. 7278 (1985) (suspending portions of the regulation that we now review).
123 CONG.REC. 15719 (1977).
Determination of bond amount.
NWF maintains that once subsidence occurs, a mine operator will be unable to find a surety willing to post a bond to guarantee repair. We do not follow the argument. A surety anticipates at the outset that the bonded land will require reclamation. The uncertainty is not over the obligation to reclaim; it relates instead to the question whether the mine operator will default on that obligation.
Subsidence and mine drainage.
According to the regulations' definition, 30 C.F.R. § 701.5,
Backfilling and grading: General requirements.
The Act's command to return land to approximate original contour, SMCRA § 515(b)(3), reads:
Section 816.105 substituted "is greater than 1.2 of the initial thickness" for "is less than 0.8 of the initial thickness," and was otherwise identically worded.
The relevant portion of 30 C.F.R. § 816.105 (1986) reads:
48 FED.REG. 23363 (1983).
SMCRA § 522(a)(6).
After the enactment of this act and subject to valid existing rights no surface coal mining operations except those which exist on the date of enactment of this Act shall be permitted —
This part of the VER regulation was remanded by the district court because it incorporated the broad definition of takings in § 761.5(a), which the court had already remanded for additional notice and comment. PSMRL II (Round III-VER), 22 E.R.C. at 1564-65. No appeal has been taken from this action by the district court.
30 C.F.R. § 761.5.
California v. United States, 438 U.S. 645, 653, 98 S.Ct. 2985, 2990, 57 L.Ed.2d 1018 (1978). See also Sporhase v. Nebraska, 458 U.S. 941, 959, 102 S.Ct. 3456, 3465-66, 73 L.Ed.2d 1254 (1982) (noting that "37 statutes ... demonstrate Congress' deference to state water law.").
48 FED.REG. 43957 (1983) (emphasis added).
S.REP. No. 128 at 51.
Section 515(e)(1) extends to regulatory authorities power to grant variances in certain cases, but only "provided that the watershed control of the area is improved; and further provided complete backfilling with spoil material shall be required to cover completely the highwall which material will maintain stability following mining and reclamation." (emphasis added).
Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983).
SMCRA § 515(e).