A preenforcement challenge to the constitutionality of the
Surface Mining Control and Reclamation Act of 1977 (Act) was
presented in a Federal District Court action wherein the plaintiffs
were an association of coal producers engaged in surface coal
mining operations in Virginia, some of its member coal companies,
individual landowners, the Commonwealth of Virginia, and a town
(hereinafter appellees). The Act is designed to establish a
nationwide program to protect society and the environment from the
adverse effects of surface coal mining operations. The Secretary of
the Interior (Secretary) has primary responsibility for
administering the Act by promulgating regulations and enforcing its
provisions. A two-stage program for the regulation of surface
mining -- an interim phase and a permanent phase -- is established;
and environmental protection performance standards are prescribed.
Ultimately, a regulatory program is to be adopted for each State,
either by approval of a State's proposed permanent program that
meets federal minimum standards or by adoption of a federal program
for any State that chooses not to submit a program. Enforcement of
the permanent programs rests either with the participating State or
with the Secretary as to nonparticipating States. The District
Court, although rejecting appellees' Commerce Clause, equal
protection, and substantive due process challenges to the Act, held
that the Act violates the Tenth Amendment, that various provisions
of the Act effect an uncompensated taking of private property in
violation of the Just Compensation Clause of the Fifth Amendment,
and that some of the Act's enforcement provisions violate
procedural due process requirements.
Held: In the context of a facial challenge, the Act is
constitutional. Pp.
452 U. S.
275-305.
Page 452 U. S. 265
(a) The Act does not violate the Commerce Clause as regulating
the use of private lands, rather than the interstate commerce
effects of surface coal mining. In view of the legislative record,
which includes extended hearings concerning the effects of surface
mining on the Nation's environment and economy and the need for
uniform minimum nationwide standards, it cannot be said that
Congress did not have a rational basis for its findings, set out in
the Act itself, that surface coal mining has substantial effects on
interstate commerce. And the Act's regulatory scheme is reasonably
related to the goals Congress sought to accomplish -- the Act's
restrictions on the practices of mine operators all serving to
control the environmental and other adverse effects of surface coal
mining. Pp.
452 U. S.
275-283.
(b) Sections 515(d) and (e) of the Act, which prescribe
performance standards on "steep slopes," including a requirement
that an operator return the site to its "approximate original
contour," and which authorize variances from the contour
requirement, do not violate any Tenth Amendment limitation on
congressional exercise of the commerce power as interfering with
the States' "traditional governmental function" of regulating land
use. The steep-slope provisions govern only the activities of coal
mine operators who are private individuals and businesses, and do
not regulate the "States as States."
Cf. National League of
Cities v. Usery, 426 U. S. 833.
Appellees' contentions that the threat of federal usurpation of
their regulatory roles coerces the States into enforcing the Act,
and that the Act regulates the States as States because it
establishes mandatory minimum federal standards, are without merit,
since the Tenth Amendment does not limit congressional power to
preempt or displace state regulation of private activities
affecting interstate commerce. Moreover, Congress does not invade
areas reserved to the States by the Tenth Amendment simply because
it exercises its authority under the Commerce Clause in a manner
that displaces the States' exercise of their police powers. Pp.
452 U. S.
283-293.
(c) The issue whether the Act's steep-slope provisions and §
522(e), which prohibits mining in certain locations, violate the
Just Compensation Clause of the Fifth Amendment is not ripe for
judicial resolution. Because appellees' taking claim arose in the
context of a facial challenge, it presented no concrete controversy
concerning either application of the Act to particular surface
mining operations or its effect on specific parcels of land. And
the "mere enactment" of the Act does not constitute a taking, since
it does not deny an owner economically viable use of his land, the
Act, except for § 522(e), neither categorically prohibiting surface
coal mining nor purporting to regulate alternative uses to which
coal-bearing lands may be put. Pp.
452 U. S.
293-297.
Page 452 U. S. 266
(d) The provisions of §§ 521, 525, and 526 of the Act pertaining
to the Secretary's issuance of orders for immediate cessation of a
surface mining operation determined to be in violation of the Act
do not violate the Fifth Amendment's Due Process Clause. Summary
administrative action resulting in deprivation of a significant
property interest without a prior hearing is justified when, as
here, it responds to situations in which swift action is necessary
to protect the public health and safety. The objective criteria for
the issuance of immediate cessation orders, established by the Act,
and the Secretary's implementing regulations, are specific enough
to control governmental action and reduce the risk of erroneous
deprivation, and mine operators are afforded a prompt and adequate
postdeprivation administrative hearing and an opportunity for
judicial review. And the District Court erred in reducing to 24
hours the statutorily prescribed 5-day period for the Secretary's
response to mine operators' requests for temporary relief from an
immediate cessation order. The record does not show that the
Secretary has not responded or will not respond in less than five
days, which is the statutory maximum, and appellees have not
demonstrated that they have been adversely affected by the 5-day
period in a particular case or that it is generally unreasonable.
In addition, no evidence was introduced to show that a shorter
reply period is administratively feasible. Pp.
452 U. S.
298-303.
(e) Appellees' due process challenge to the Act's provisions for
the imposition of civil penalties for violations of cessation
orders is premature. Appellees did not allege that they, or any one
of them, have had civil penalties assessed against them, and there
was no finding that any of appellee coal mine operators have been
affected or harmed by any of the statutory procedures for the
assessment and collection of fines. Pp.
452 U. S.
303-304.
483 F.
Supp. 425, affirmed in part, reversed in part, and
remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and
STEVENS, JJ., joined. BURGER, C.J., filed a concurring statement,
post, p.
452 U. S. 305.
POWELL, J., filed a concurring opinion,
post, p.
452 U. S. 305.
REHNQUIST, J., filed an opinion concurring in the judgment,
post, p.
452 U. S.
307.
Page 452 U. S. 268
JUSTICE MARSHALL delivered the opinion of the Court.
These cases arise out of a preenforcement challenge to the
constitutionality of the Surface Mining Control and Reclamation Act
of 1977 (Surface Mining Act or Act), 91 Stat. 447, 30 U.S.C. § 1201
et seq. (1976 ed., Supp. III). The United States District
Court for the Western District of Virginia declared several central
provisions of the Act unconstitutional and permanently enjoined
their enforcement.
483 F.
Supp. 425 (1980). In these appeals, we consider whether
Congress, in adopting the Act, exceeded its powers under the
Commerce Clause of the Constitution, [
Footnote 1] or transgressed affirmative limitations on the
exercise of that power contained in the Fifth and Tenth Amendments.
We conclude that, in the context of a facial challenge, the Surface
Mining Act does not suffer from any of these alleged constitutional
defects, and we uphold the Act as constitutional.
I
A
The Surface Mining Act is a comprehensive statute designed to
"establish a nationwide program to protect society and the
environment from the adverse effects of surface coal mining
operations." § 102(a), 30 U.S.C. § 1202(a) (1976 ed., Supp. III).
Title II of the Act, 30 U.S.C. § 1211 (1976 ed., Supp. III),
creates the Office of Surface Mining Reclamation and Enforcement
(OSM), within the Department of the Interior, and the Secretary of
the Interior (Secretary) acting through OSM, is charged with
primary responsibility for administering
Page 452 U. S. 269
and implementing the Act by promulgating regulations and
enforcing its provisions. § 201(c), 30 U.S.C. § 1211(c) (1976 ed.,
Supp. III). The principal regulatory and enforcement provisions are
contained in Title V of the Act, 91 Stat. 467-514, 30 U.S.C. §§
1251-1279 (1976 ed., Supp. III). Section 501, 30 U.S.C. § 1251
(1976 ed., Supp. III), establishes a two-stage program for the
regulation of surface coal mining: an initial, or interim
regulatory phase, and a subsequent, permanent phase. The interim
program mandates immediate promulgation and federal enforcement of
some of the Act's environmental protection performance standards,
complemented by continuing state regulation. Under the permanent
phase, a regulatory program is to be adopted for each State,
mandating compliance with the full panoply of federal performance
standards, with enforcement responsibility lying with either the
State or Federal Government.
Section 501(a) directs the Secretary to promulgate regulations
establishing an interim regulatory program during which mine
operators will be required to comply with some of the Act's
performance standards, as specified by § 502(c) 30 U.S.C. § 1252(c)
(1976 ed., Supp. III). Included among those selected standards are
requirements governing: (a) restoration of land after mining to its
prior condition; (b) restoration of land to its approximate
original contour; (c) segregation and preservation of topsoil; (d)
minimization of disturbance to the hydrologic balance; (e)
construction of coal mine waste piles used as dams and embankments;
(f) revegetation of mined areas; and (g) spoil disposal. § 515(b),
30 U.S.C. § 1265(b) (1976 ed., Supp. III). [
Footnote 2] The interim
Page 452 U. S. 270
regulations were published on December 13, 1977,
see 42
Fed.Reg. 62639, [
Footnote 3]
and they are currently in effect in most States, including
Virginia. [
Footnote 4]
The Secretary is responsible for enforcing the interim
regulatory program. § 502(e), 30 U.S.C. § 1252(e) (1976 ed., Supp.
III). A federal enforcement and inspection program is to be
established for each State, and is to remain in effect until a
permanent regulatory program is implemented in the State. States
may issue permits for surface mining operations during the interim
phase, but operations authorized by such permits must comply with
the federal interim performance standards. § 502(b), 30 U.S.C. §
1252(b) (1976 ed., Supp. III). States may also pursue their own
regulatory and inspection programs during the interim phase, and
they may
Page 452 U. S. 271
assist the Secretary in enforcing the interim standards.
[
Footnote 5] The States are
not, however, required to enforce the interim regulatory standards,
and, until the permanent phase of the program, the Secretary may
not cede the Federal Government's independent enforcement role to
States that wish to conduct their own regulatory programs.
Section 501(b), 30 U.S.C. § 1251(b) (1976 ed., Supp. III),
directs the Secretary to promulgate regulations establishing a
permanent regulatory program incorporating all the Act's
performance standards. The Secretary published the permanent
regulations on March 13, 1979,
see 44 Fed.Reg. 14902, but
these regulations do not become effective in a particular State
until either a permanent state program, submitted and approved in
accordance with § 503 of the Act, or a permanent federal program
for the State, adopted in accordance with § 504, is
implemented.
Under § 503, any State wishing to assume permanent regulatory
authority over the surface coal mining operations on "non-Federal
lands" [
Footnote 6] within its
borders must submit a proposed permanent program to the Secretary
for his approval. The proposed program must demonstrate that the
state legislature has enacted laws implementing the environmental
protection standards established by the Act and accompanying
regulations, and that the State has the administrative and
technical ability to enforce these standards. 30 U.S.C. § 1253
(1976 ed., Supp. III). The Secretary must approve or disapprove
each such proposed program in accordance with time schedules and
procedures established by §§ 503(b), (c),
Page 452 U. S. 272
30 U.S.C. §§ 1253(b),(c) (1976 ed., Supp. III). [
Footnote 7] In addition, the Secretary must
develop and implement a federal permanent program for each State
that fails to submit or enforce a satisfactory state program. §
504, 30 U.S.C. § 1254 (1976 ed. Supp. III). In such situations, the
Secretary constitutes the regulatory authority administering the
Act within that State, and continues as such unless and until a
"state program" is approved. No later than eight months after
adoption of either a state-run or federally administered permanent
regulatory program for a State, all surface coal mining and
reclamation operations on "non-Federal lands" within that State
must obtain a new permit issued in accordance with the applicable
regulatory program. § 506(a), 30 U.S.C. § 1256(a) (1976 ed., Supp.
III).
Page 452 U. S. 273
B
On October 23, 1978, the Virginia Surface Mining and Reclamation
Association, Inc., an association of coal producers engaged in
surface coal mining operations in Virginia, 63 of its member coal
companies, and 4 individual landowners filed suit in Federal
District Court seeking declaratory and injunctive relief against
various provisions of the Act. The Commonwealth of Virginia and the
town of Wise, Va., intervened as plaintiffs. [
Footnote 8] Plaintiffs' challenge was primarily
directed at Title V's performance standards. [
Footnote 9] Because the permanent regulatory
program was not scheduled to become effective until June 3, 1980,
plaintiffs' challenge was directed at the sections of the Act
establishing the interim regulatory program. Plaintiffs alleged
that these provisions violate the Commerce Clause, the equal
protection and due process guarantees of the Due Process Clause of
the Fifth Amendment, [
Footnote
10] the Tenth Amendment, [
Footnote 11] and the Just Compensation Clause of the
Fifth Amendment. [
Footnote
12]
The District Court held a 13-day trial on plaintiffs' request
for a permanent injunction. The court subsequently
Page 452 U. S. 274
issued an order and opinion declaring several central provisions
of the Act unconstitutional.
483 F.
Supp. 425 (1980). The court rejected plaintiffs' Commerce
Clause, equal protection, and substantive due process challenges to
the Act. The court held, however that the Act
"operates to 'displace the States' freedom to structure integral
operations in areas of traditional functions,' . . . and therefore
is in contravention of the Tenth Amendment."
Id. at 435, quoting
National League of Cities v.
Usery, 426 U. S. 833,
426 U. S. 852
(1976). The court also ruled that various provisions of the Act
effect an uncompensated taking of private property in violation of
the Just Compensation Clause of the Fifth Amendment. Finally, the
court agreed with plaintiffs' due process challenges to some of the
Act's enforcement provisions. The court permanently enjoined the
Secretary from enforcing various provisions of the Act. [
Footnote 13]
In No. 79-1538, the Secretary appeals from that portion of the
District Court's judgment declaring various sections of the Act
unconstitutional and permanently enjoining their enforcement. In
No. 79-1596, plaintiffs cross-appeal from the District Court's
rejection of their Commerce Clause challenge to the Act. [
Footnote 14] Because of the
importance of the issues raised, we noted probable jurisdiction of
both appeals, [
Footnote 15]
449 U.S.
Page 452 U. S. 275
817 (1980), and consolidated the two cases. [
Footnote 16] For convenience, we shall
usually refer to plaintiffs as "appellees."
II
On cross-appeal, appellees argue that the District Court erred
in rejecting their challenge to the Act as beyond the scope of
congressional power under the Commerce Clause. They insist that the
Act's principal goal is regulating the use of private lands within
the borders of the States, and not, as the District Court found,
regulating the interstate commerce effects of surface coal mining.
Consequently, appellees contend that the ultimate issue presented
is "whether land,
as such, is subject to regulation under
the Commerce Clause,
i.e. whether land can be regarded as
in commerce.'" Brief for Virginia Surface Mining &
Reclamation Association, Inc., et al. 12 (emphasis in
original). In urging us to answer "no" to this question, appellees
emphasize that the Court has recognized that land use regulation is
within the inherent police powers of the States and their political
subdivisions, [Footnote 17]
and
Page 452 U. S. 276
argue that Congress may regulate land use only insofar as the
Property Clause [
Footnote
18] grants it control over federal lands.
We do not accept either appellees' framing of the question or
the answer they would have us supply. The task of a court that is
asked to determine whether a particular exercise of congressional
power is valid under the Commerce Clause is relatively narrow. The
court must defer to a congressional finding that a regulated
activity affects interstate commerce, if there is any rational
basis for such a finding.
Heart of Atlanta Motel, Inc. v.
United States, 379 U. S. 241,
379 U. S. 258
(1964);
Katzenbach v. McClung, 379 U.
S. 294,
379 U. S.
303-304 (1964). This established, the only remaining
question for judicial inquiry is whether "the means chosen by
[Congress] must be reasonably adapted to the end permitted by the
Constitution."
Heart of Atlanta Motel, Inc. v. United States,
supra, at
379 U. S. 262.
See United States v. Darby, 312 U.
S. 100,
312 U. S. 121
(1941);
Katzenbach v. McClung, 379 U.S. at
379 U. S. 304.
The judicial task is at an end once the court determines that
Congress acted rationally in adopting a particular regulatory
scheme.
Ibid.
Judicial review in this area is influenced above all by the fact
that the Commerce Clause is a grant of plenary authority to
Congress.
See National League of Cities v. Usery, supra,
at
426 U. S. 840;
Cleveland v. United States, 329 U. S.
14,
329 U. S. 19
(1946);
NLRB v. Jones & Laughlin Steel Corp.,
301 U. S. 1,
301 U. S. 37
(1937). This power is "complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are
prescribed in the constitution."
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196
(1824). Moreover, this Court has made clear that the commerce power
extends not only to "the use of channels of interstate or foreign
commerce" and
Page 452 U. S. 277
to "protection of the instrumentalities of interstate commerce .
. . or persons or things in commerce," but also to "activities
affecting commerce."
Perez v. United States, 402 U.
S. 146,
402 U. S. 150
(1971). As we explained in
Fry v. United States,
421 U. S. 542,
421 U. S. 547
(1975),
"[e]ven activity that is purely intrastate in character may be
regulated by Congress, where the activity, combined with like
conduct by others similarly situated, affects commerce among the
States or with foreign nations."
See National League of Cities v. Usery, 426 U.S. at
426 U. S. 840;
Heart of Atlanta Motel, Inc. v. United States, supra, at
379 U. S. 255;
Wickard v. Filburn, 317 U. S. 111,
317 U. S.
127-128 (1942);
United States v. Wrightwood Dairy
Co., 315 U. S. 110,
315 U. S. 119
(1942);
United States v. Darby, supra, at
312 U. S.
120-121.
Thus, when Congress has determined that an activity affects
interstate commerce, the courts need inquire only whether the
finding is rational. H ere, the District Court properly deferred to
Congress' express findings, set out in the Act itself, about the
effects of surface coal mining on interstate commerce. Section
101(c), 30 U.S.C. § 1201(c) (1976 ed., Supp. III), recites the
congressional finding that
"many surface mining operations result in disturbances of
surface areas that burden and adversely affect commerce and the
public welfare by destroying or diminishing the utility of land for
commercial. industrial, residential, recreational, agricultural,
and forestry purposes, by causing erosion and landslides, by
contributing to floods, by polluting the water, by destroying fish
and wildlife habitats, by impairing natural beauty, by damaging the
property of citizens, by creating hazards dangerous to life and
property by degrading the quality of life in local communities, and
by counteracting governmental programs and efforts to conserve
soil, water, and other natural resources."
The legislative record provides ample support for these
statutory findings. The Surface Mining Act became law
Page 452 U. S. 278
only after six years of the most thorough legislative
consideration. [
Footnote 19]
Committees of both Houses of Congress held extended hearings during
which vast amounts of testimony and
Page 452 U. S. 279
documentary evidence about the effects of surface mining on our
Nation's environment and economy were brought to Congress'
attention. Both Committees made detailed findings about these
effects and the urgent need for federal legislation to address the
problem. The Senate Report explained that
"[s]urface coal mining activities have imposed large social
costs on the public . . . in many areas of the country in the form
of unreclaimed lands, water pollution, erosion, floods, slope
failures, loss of fish and wildlife resources, and a decline in
natural beauty."
S.Rep. No. 95-128, p. 50 (1977).
See id. at 50-54.
Similarly, the House Committee documented the adverse effects of
surface coal mining on interstate commerce as including:
"'Acid drainage which has ruined an estimated 11,000 miles of
streams; the loss of prime hardwood forest and the destruction of
wildlife habitat by strip mining; the degrading of productive
farmland; recurrent
Page 452 U. S. 280
landslides; siltation and sedimentation of river systems. . .
.'"
H.R.Rep. No. 95-218, p. 58 (1977), quoting H.R.Rep. No. 94-1445,
p.19 (1976), And in discussing how surface coal mining affects
water resources and, in turn, interstate commerce, the House
Committee explained:
"The most widespread damages . . . are environmental in nature.
Water users and developers incur significant economic and financial
losses as well."
"Reduced recreational values, fishkills, reductions in normal
waste assimilation capacity, impaired water supplies, metals and
masonry corrosion and deterioration, increased flood frequencies
and flood damages, reductions in designed water storage capacities
at impoundments, and higher operating costs for commercial waterway
users are some of the most obvious economic effects that stem from
mining-related pollution and sedimentation."
H.R.Rep. No. 95-218, at 59.
See id. at 96-122.
The Committees also explained that inadequacies in existing
state laws and the need for uniform minimum nationwide standards
made federal regulations imperative.
See S.Rep. No.
95-128, at 49; H.R.Rep. No. 95-218, at 58. In light of the evidence
available to Congress and the detailed consideration that the
legislation received, we cannot say that Congress did not have a
rational basis for concluding that surface coal mining has
substantial effects on interstate commerce.
Appellees do not, in general, dispute the validity of the
congressional findings. [
Footnote 20] Rather, appellees' contention is that
Page 452 U. S. 281
the "rational basis" test should not apply in this case because
the Act regulates land use, a local activity not affecting
interstate commerce. But even assuming that appellees correctly
characterize the land use regulated by the Act as a "local"
activity, their argument is unpersuasive.
The denomination of an activity as a "local" or "intrastate"
activity does not resolve the question whether Congress may
regulate it under the Commerce Clause. As previously noted, the
commerce power
"extends to those activities intrastate which so affect
interstate commerce, or the exertion of the power of Congress over
it, as to make regulation of them appropriate means to the
attainment of a legitimate end, the effective execution of the
granted power to regulate interstate commerce."
United States v. Wrightwood Dairy Co., 315 U.S. at
315 U. S. 119.
See Fry v. United States, 421 U.S. at
421 U. S. 547;
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. at
301 U. S. 37.
This Court has long held that Congress may regulate the conditions
under which goods shipped in interstate commerce are produced where
the "local" activity of producing these goods itself affects
interstate commerce.
See, e.g., United States v. Darby,
312 U. S. 100
(1941);
Wickard v. Filburn, 317 U.
S. 111 (1942);
NLRB v. Jones Laughlin Steel Corp.,
supra; Kirschbaum Co. v. Walling, 316 U.
S. 517 (1942).
Cf. Katzenbach v. McClung,
379 U. S. 294
(1964). Appellees do not dispute that coal is a commodity that
moves in interstate commerce. Here, Congress rationally determined
that regulation of surface coal mining is necessary to protect
interstate commerce from adverse effects that may result from that
activity. This congressional finding is sufficient to sustain the
Act as a valid exercise of Congress' power under the Commerce
Clause.
Moreover, the Act responds to a congressional finding that
nationwide
"surface mining and reclamation standards are essential in order
to insure that competition in interstate commerce among sellers of
coal produced in different States will not be used to undermine the
ability of the several States
Page 452 U. S. 282
to improve and maintain adequate standards on coal mining
operations within their borders"
30 U.S.C. 1201(g) (1976 ed., Supp. III). The prevention of this
sort of destructive interstate competition is a traditional role
for congressional action under the Commerce Clause. In
United
States v. Darby, supra, the Court used a similar rationale to
sustain the imposition of federal minimum wage and maximum hour
regulations on a manufacturer of goods shipped in interstate
commerce. The Court explained that the statute implemented
Congress' view that
"interstate commerce should not be made the instrument of
competition in the distribution of goods produced under substandard
labor conditions, which competition is injurious to the commerce
and to the states from and to which the commerce flows."
Id. at
312 U. S. 115.
The same rationale applies here to support the conclusion that the
Surface Mining Act is within the authority granted to Congress by
the Commerce Clause.
Finally, we agree with the lower federal courts that have
uniformly found the power conferred by the Commerce Clause broad
enough to permit congressional regulation of activities causing air
or water pollution, or other environmental hazards that may have
effects in more than one State. [
Footnote 21] Appellees do not dispute that the
environmental and other problems that the Act attempts to control
can properly be addressed through Commerce Clause legislation. In
these circumstances, it is difficult to find any remaining
foundation
Page 452 U. S. 283
for appellees' argument that, because it regulates a particular
land use, the Surface Mining Act is beyond congressional Commerce
Clause authority. Accordingly, we turn to the question whether the
means selected by Congress were reasonable and appropriate.
Appellees' essential challenge to the means selected by the Act
is that they are redundant or unnecessary. Appellees contend that a
variety of federal statutes such as the Clean Air Act, 42 U.S.C. §
7401
et seq. (1976 ed., Supp. III), the Flood Control
Acts, 33 U.S.C. § 701
et seq. (1976 ed., Supp. III), and
the Clean Water Act, 33 U.S.C. § 1251
et seq. (1976 ed.,
Supp. III), adequately address the federal interest in controlling
the environmental effects of surface coal mining without need to
resort to the land use regulation scheme of the Surface Mining Act.
The short answer to this argument is that the effectiveness of
existing laws in dealing with a problem identified by Congress is
ordinarily a matter committed to legislative judgment. Congress
considered the effectiveness of existing legislation and concluded
that additional measures were necessary to deal with the interstate
commerce effects of surface coal mining.
See H.R.Rep. No.
95-218 at 58-60; S.Rep. No. 95-128, at 59-63. And we agree with the
court below that the Act's regulatory scheme is reasonably related
to the goals Congress sought to accomplish. The Act's restrictions
on the practices of mine operators all serve to control the
environmental and other adverse effects of surface coal mining.
In sum, we conclude that the District Court properly rejected
appellees' Commerce Clause challenge to the Act. We therefore turn
to the court's ruling that the Act contravenes affirmative
constitutional limitations on congressional exercise of the
commerce power.
III
The District Court invalidated §§ 515(d) and(e) of the Act,
which prescribe performance standards for surface coal
Page 452 U. S. 284
mining on "steep slopes," [
Footnote 22] on the ground that they violate a
constitutional limitation on the commerce power imposed by the
Tenth Amendment. These provisions require "steep slope" operators:
(i) to reclaim the mined area by completely covering the highwall
and returning the site to its "approximate original contour";
[
Footnote 23] (ii) to
refrain from dumping spoil material on the downslope below the
bench or mining cut; and (iii) to refrain from disturbing land
above the highwall unless permitted to do so by the regulatory
authority. 515(d), 30 U.S.C. § 1265(d) (1976 ed., Supp. III). Under
§ 515(e), a "steep slope" operator may obtain a variance from the
approximate original contour requirement by showing that it will
allow a post-reclamation use that is "deemed to constitute an equal
or better economic or public use" than would otherwise be possible.
30 U.S.C. § 1265(e)(3)(A) (1976 ed., Supp. III). [
Footnote 24]
The District Court's ruling relied heavily on our decision in
National League of Cities v. Usery, 426 U.
S. 833 (1976). The District Court viewed the central
issue as whether the Act governs the activities of private
individuals, or whether it instead regulates the governmental
decisions of the States. And although the court acknowledged that
the Act "ultimately affects the coal mine operator," 483 F. Supp.
at 432, it concluded that the Act contravenes the Tenth
Amendment
Page 452 U. S. 285
because it interferes with the States' "traditional governmental
function" of regulating land use.
Id. at 435. The court
held that, as applied to Virginia, the Act's steep slope provisions
impermissibly constrict the State's ability to make "essential
decisions." [
Footnote 25]
The court found the Act accomplishes this result "through forced
relinquishment of state control of land use planning; through loss
of state control of its economy; and through economic harm, from
expenditure of state funds to implement the act and from
destruction of the taxing power of certain counties, cities, and
towns."
Id. at 435 [
Footnote 26] The court therefore permanently enjoined
enforcement of §§ 515(d) and(e). [
Footnote 27]
Page 452 U. S. 286
The District Court's reliance on
National League of
Cities requires a careful review of the actual basis and
import of our decision in that case. There, we considered a
constitutional challenge to the 1974 amendments to the Fair Labor
Standards Act which had extended federal minimum wage and maximum
hour regulations to most state and local government employees.
Because it was conceded that the challenged regulations were
"undoubtedly within the scope of the Commerce Clause," 426 U.S. at
426 U. S. 841,
the only question presented was whether that particular exercise of
the commerce power
"encounter[ed] a . . . constitutional barrier because [the
regulations] applied directly to the States and subdivisions of
States as employers."
Ibid. We began by drawing a sharp distinction between
congressional regulation of private persons and businesses
"necessarily subject to the dual sovereignty of the government of
the Nation and of the State in which they reside,"
id. at
426 U. S. 845,
and federal regulation "directed, not to private citizens, but to
the States as States,"
ibid. As to the former, we found no
Tenth Amendment impediment to congressional action. Instead, we
reaffirmed our consistent rule:
"Congressional power over areas of private endeavor, even when
its exercise may preempt express state law determinations contrary
to the result that has commended itself to the collective wisdom of
Congress, has been held to be limited only by the requirement that
'the means chosen by [Congress] must be reasonably adapted to the
end permitted by the Constitution.'
Heart of Atlanta Motel,
Inc. v. United States, 379 U. S. 241,
379 U. S.
262 (1964)."
Id. at
426 U. S.
840.
The Court noted, however, that
"the States as States stand on a quite different footing from an
individual or corporation when challenging the exercise of
Congress' power to regulate commerce."
Id. at
426 U. S. 854.
It indicated that, when Congress attempts to directly regulate the
States as States, the Tenth
Page 452 U. S. 287
Amendment requires recognition that
"there are attributes of sovereignty attaching to every state
government which may not be impaired by Congress not because
Congress may lack an affirmative grant of legislative authority to
reach the matter, but because the Constitution prohibits it from
exercising the authority in that manner."
Id. at
426 U. S. 845.
The Court held that the power to set the wages and work hours of
state employees was "an undoubted attribute of state sovereignty."
Ibid. And because it further found that the challenged
regulations would "displace the States' freedom to structure
integral operations in areas of traditional governmental
functions,"
id. at
426 U. S. 852,
the Court concluded that Congress could not, consistently with the
Tenth Amendment, "abrogate the States' otherwise plenary authority
to make [these decisions]."
Id. at
426 U. S. 846.
[
Footnote 28]
It should be apparent from this discussion that, in order to
succeed, a claim that congressional commerce power legislation is
invalid under the reasoning of
National League of Cities
must satisfy
each of three requirements. First, there must
be a showing that the challenged statute regulates the "States as
States."
Id. at
426 U. S. 854.
Second, the federal regulation
Page 452 U. S. 288
must address matters that are indisputably "attribute[s] of
state sovereignty."
Id. at
426 U. S. 845.
And third, it must be apparent that the States' compliance with the
federal law would directly impair their ability "to structure
integral operations in areas of traditional governmental
functions."
Id. at
426 U. S. 852.
[
Footnote 29] When the
Surface Mining Act is examined in light of these principles, it is
clear that appellees' Tenth Amendment challenge must fail because
the first of the three requirements is not satisfied. The District
Court's holding to the contrary rests on an unwarranted extension
of the decision in
National League of Cities.
As the District Court itself acknowledged, the steep slope
provisions of the Surface Mining Act govern only the activities of
coal mine operators who are private individuals and businesses.
Moreover, the States are not compelled to enforce the steep slope
standards, to expend any state funds, or to participate in the
federal regulatory program in any manner whatsoever. If a State
does not wish to submit a proposed permanent program that complies
with the Act and implementing regulations, the full regulatory
burden will be borne by the Federal Government. Thus, there can be
no suggestion that the Act commandeers the legislative processes of
the States by directly compelling them to enact and enforce a
federal regulatory program.
Cf. Maryland v. EPA, 530 F.2d
215, 224-228 (CA4 1975),
vacated and remanded sub nom. EPA v.
Brown, 431 U. S. 99
(1977);
District of Columbia v. Train, 172 U.S.App.D.C.
311, 330-334, 521 F.2d 971, 990-994 (1975),
vacated and
remanded sub nom. EPA v. Brown, 431 U. S.
99 (1977);
Brown v. EPA, 521 F.2d
Page 452 U. S. 289
827, 837-842 (CA9 1975),
vacated and remanded,
431 U. S. 99
(1977). The most that can be said is that the Surface Mining Act
establishes a program of cooperative federalism that allows the
States, within limits established by federal minimum standards, to
enact and administer their own regulatory programs, structured to
meet their own particular needs.
See In re Permanent Surface
Mining Regulation Litigation, 199 U.S.App.D.C. 225, 226, 617
F.2d 807, 808 (1980). In this respect, the Act resembles a number
of other federal statutes that have survived Tenth Amendment
challenges in the lower federal courts. [
Footnote 30]
Appellees argue, however, that the threat of federal usurpation
of their regulatory roles coerces the States into enforcing the
Surface Mining Act. Appellees also contend that the Act directly
regulates the States as States because it establishes mandatory
minimum federal standards. In essence, appellees urge us to join
the District Court in looking beyond the activities actually
regulated by the Act to its conceivable effects on the States'
freedom to make decisions in areas of "integral governmental
functions." And appellees emphasize, as did the court below, that
the Act interferes with the States' ability to exercise their
police powers by regulating land use.
Appellees' claims accurately characterize the Act insofar as it
prescribes federal minimum standards governing surface coal mining,
which a State may either implement itself or else yield to a
federally administered regulatory program. To object to this
scheme, however, appellees must assume that the Tenth Amendment
limits congressional power to
Page 452 U. S. 290
preempt or displace state regulation of private activities
affecting interstate commerce. This assumption is incorrect. A
wealth of precedent attests to congressional authority to displace
or preempt state laws regulating private activity affecting
interstate commerce when these laws conflict with federal law.
See, e.g., Jones v. Rath Packing Co., 430 U.
S. 519,
430 U. S.
525-526 (1977);
Perez v. Campbell, 402 U.
S. 637,
402 U. S.
649-650 (1971);
Florida Lime & Avocado Growers,
Inc. v. Paul, 373 U. S. 132,
373 U. S.
141-143 (1963);
Bethlehem Steel Co. v. New York
State Labor Relations Bd., 330 U. S. 767,
330 U. S.
772-776 (1947);
Hines v. Davidowitz,
312 U. S. 52,
312 U. S. 67-68
(1941). Moreover, it is clear that the Commerce Clause empowers
Congress to prohibit all -- and not just inconsistent -- state
regulation of such activities.
See, e.g., City of Burbank v.
Lockheed Air Terminal, Inc., 411 U. S. 624
(1973);
Campbell v. Hussey, 368 U.
S. 297 (1961);
Rice v. Santa Fe Elevator Corp.,
331 U. S. 218
(1947);
Transit Comm'n v. United States, 289 U.
S. 121 (1933). Although such congressional enactments
obviously curtail or prohibit the States' prerogatives to make
legislative choices respecting subjects the States may consider
important, the Supremacy Clause permits no other result.
See
Chicago & North Western Transp. Co. v. Kalo Brick & Tile
Co., 450 U. S. 311,
450 U. S.
317-319 (1981);
Sanitary District v. United
States, 266 U. S. 405,
266 U. S.
425-426 (1925);
The Minnesota Rate Cases,
230 U. S. 352,
230 U. S. 399
(1913);
Gibbons v. Ogden, 9 Wheat. at
22 U. S. 211. As
the Court long ago stated:
"It is elementary and well settled that there can be no divided
authority over interstate commerce, and that the acts of Congress
on that subject are supreme and exclusive."
Missouri Pacific R. Co. v. Stroud, 267 U.
S. 404,
267 U. S. 408
(1925). Thus, Congress could constitutionally have enacted a
statute prohibiting any state regulation of surface coal mining. We
fail to see why the Surface Mining Act should become
constitutionally suspect simply because Congress chose to allow the
States a regulatory role. Contrary to the assumption by both the
District Court and appellees, nothing in
Page 452 U. S. 291
National League of Cities suggests that the Tenth
Amendment shields the States from preemptive federal regulation of
private activities affecting interstate commerce. To the contrary,
National League of Cities explicitly reaffirmed the
teaching of earlier cases that Congress may, in regulating private
activities pursuant to the commerce power, "preempt express state
law determinations contrary to the result which has commended
itself to the collective wisdom of Congress. . . ." 426 U.S. at
426 U. S. 840.
The only limitation on congressional authority in this regard is
the requirement that the means selected be reasonably related to
the goal of regulating interstate commerce.
Ibid. We have
already indicated that the Act satisfies this test. [
Footnote 31]
This conclusion applies regardless of whether the federal
legislation displaces laws enacted under the States' "police
powers." The Court long ago rejected the suggestion that Congress
invades areas reserved to the States by the Tenth Amendment simply
because it exercises its authority under the Commerce Clause in a
manner that displaces the States' exercise of their police powers.
See Hoke v. United States, 227 U.
S. 308,
227 U. S.
320-323 (1913);
Athanasaw v. United States,
227 U. S. 326
(1913);
Cleveland v. United States, 329 U.S. at
329 U. S. 19;
United States v. Darby, 312 U.S. at
312 U. S.
113-114;
United States v. Wrightwood Dairy Co.,
315 U.S. at
315 U. S. 119.
Cf. United States v. Carolene Products Co., 304 U.
S. 144,
304 U. S. 147
(1938) ("it is no objection to the exertion of the power to
regulate interstate commerce that its exercise is attended by the
same incidents which attend the exercise of the police power of the
states"); [
Footnote 32]
accord,
FPC v. Natural Gas Pipeline
Co., 315
Page 452 U. S. 292
U.S. 575,
315 U. S. 582
(1942);
Hamilton v. Kentucky Distilleries & Warehouse
Co., 251 U. S. 146,
251 U. S. 156
(1919);
Seven Cases v. United States, 239 U.
S. 510,
239 U. S. 514
(1916). This Court has upheld as constitutional any number of
federal statutes enacted under the commerce power that preempt
particular exercises of state police power.
See, e.g., United
States v. Walsh, 331 U. S. 432
(1947) (upholding Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
§§ 301-392);
NLRB v. Jones & Laughlin Steel Corp.,
301 U. S. 1 (1937)
(upholding National Labor Relations Act, 29 U.S.C. §§ 151-168);
United States v. Darby, supra, (upholding Fair Labor
Standards Act, 29 U.S.C. §§ 201-219). It would therefore be a
radical departure from long-established precedent for this Court to
hold that the Tenth Amendment prohibits Congress from displacing
state police power laws regulating private activity. Nothing in
National League of Cities compels or even hints at such a
departure. [
Footnote 33]
Page 452 U. S. 293
In sum, appellees' Tenth Amendment challenge to the Surface
Mining Act must fail because here, in contrast to the situation in
National League of Cities, the statute at issue regulates
only "individual businesses necessarily subject to the dual
sovereignty of the government of the Nation and the State in which
they reside."
National League of Cities v. Usery, 426 U.S.
at
426 U. S. 845.
[
Footnote 34] Accordingly,
we turn to the District Court's ruling that the Act contravenes
other constitutional limits on congressional action.
IV
The District Court held that two of the Act's provisions violate
the Just Compensation Clause of the Fifth Amendment. First, the
court found that the steep slope provisions discussed above effect
an uncompensated taking of private property by requiring operators
to perform the "economically and physically impossible" task of
restoring steep slope surface mines to their approximate original
contour. 483 F. Supp. at 437. [
Footnote 35] The court further held that, even if steep
slope surface mines could be restored to their approximate original
contour, the value of the mined land after such restoration would
have "been diminished to practically nothing."
Page 452 U. S. 294
Ibid. Second, the court found that § 522 of the Act
effects an unconstitutional taking because it expressly prohibits
mining in certain locations and "clearly prevent[s] a person from
mining his own land or having it mined."
Id. at 441.
[
Footnote 36] Relying on
this Court's decision in
Pennsylvania Coal Co. v. Mahon,
260 U. S. 393
(1922), the District Court held that both of these provisions are
unconstitutional because they "depriv[e] [coal mine operators] of
any use of [their] land, not only the most profitable. . . ." 483
F. Supp. at 441.
We conclude that the District Court s ruling on the "taking"
issue suffers from a fatal deficiency: neither appellees nor the
court identified any property in which appellees have an interest
that has allegedly been taken by operation of the Act. By
proceeding in this fashion, the court below ignored this Court's
oft-repeated admonition that the constitutionality of statutes
ought not be decided except in an actual
Page 452 U. S. 295
factual setting that makes such a decision necessary.
See
Socialist labor Party v. Gilligan, 406 U.
S. 583,
406 U. S. 588
(1972);
Rescue Army v. Municipal Court, 331 U.
S. 549,
331 U. S.
568-575,
331 U. S. 584
(1947);
Alabama State Federation of Labor v. McAdory,
325 U. S. 450,
325 U. S. 461
(1945). Adherence to this rule is particularly important in cases
raising allegations of an unconstitutional taking of private
property. Just last Term, we reaffirmed that
"this Court has generally "been unable to develop any
set
formula' for determining when `justice and fairness' require that
economic injuries caused by public action be compensated by the
government, rather than remain disproportionately concentrated on a
few persons." Rather, it has examined the "taking" question by
engaging in essentially ad hoc, factual inquiries that
have identified several factors -- such as the economic impact of
the regulation, its interference with reasonable investment-backed
expectations, and the character of the government action -- that
have particular significance."
Kaiser Aetna v. United States, 444 U.
S. 164,
444 U. S. 175
(1979) (citations omitted). These "
ad hoc, factual
inquiries" must be conducted with respect to specific property, and
the particular estimates of economic impact and ultimate valuation
relevant in the unique circumstances.
Because appellees' taking claim arose in the context of a facial
challenge, it presented no concrete controversy concerning either
application of the Act to particular surface mining operations or
its effect on specific parcels of land. Thus, the only issue
properly before the District Court, and, in turn, this Court, is
whether the "mere enactment" of the Surface Mining Act constitutes
a taking.
See Agins v. Tiburon, 447 U.
S. 255,
447 U. S. 260
(1980). The test to be applied in considering this facial challenge
is fairly straightforward. A
Page 452 U. S. 296
statute regulating the uses that can be made of property effects
a taking if it "denies an owner economically viable use of his
land. . . ."
Agins v. Tiburon, supra, at
447 U. S. 260.
See Penn Central Transp. Co. v. New York City,
438 U. S. 104
(1978). The Surface Mining Act easily survives scrutiny under this
test.
First, the Act does not, on its face, prevent beneficial use of
coal-bearing lands. Except for the proscription of mining near
certain locations by § 522(e), the Act does not categorically
prohibit surface coal mining; it merely regulates the conditions
under which such operations may be conducted. [
Footnote 37] The Act does not purport to
regulate alternative uses to which coal-bearing lands may be put.
[
Footnote 38] Thus, in the
posture in
Page 452 U. S. 297
which these cases come before us, there is no reason to suppose
that "mere enactment" of the Surface Mining Act has deprived
appellees of economically viable use of their property.
Moreover, appellees cannot at this juncture legitimately raise
complaints in this Court about the manner in which the challenged
provisions of the Act have been or will be applied in specific
circumstances, or about their effect on particular coal mining
operations. There is no indication in the record that appellees
have availed themselves of the opportunities provided by the Act to
obtain administrative relief by requesting either a variance from
the "approximate original contour" requirement of § 515(d) or a
waiver from the surface mining restrictions in § 522(e). If
appellees were to seek administrative relief under these
procedures, a mutually acceptable solution might well be reached
with regard to individual properties, thereby obviating any need to
address the constitutional questions. [
Footnote 39] The potential for such administrative
solutions confirms the conclusion that the taking issue decided by
the District Court simply is not ripe for judicial resolution.
[
Footnote 40]
Page 452 U. S. 298
V
A
The District Court next ruled that the Act contravenes the Fifth
Amendment because a number of its enforcement provisions offend the
Amendment's Due Process Clause. One such provision is § 521(a)(2),
30 U.S.C. § 1271(a)(2) (1976 ed., Supp. III), which instructs the
Secretary immediately to order total or partial cessation of a
surface mining operation whenever he determines, on the basis of a
federal inspection, that the operation is in violation of the Act
or a permit condition required by the Act, and that the
operation
"creates an immediate danger to the health or safety of the
public, or is causing, or can reasonably be expected to cause,
significant, imminent environmental harm to land, air, or water
resources. . . . [
Footnote
41]"
A mine operator aggrieved by an immediate cessation order issued
under § 521(a)(2) or by a cessation order issued after a notice of
violation and expiration of an abatement period under § 521(a)(3)
may immediately request temporary relief from the Secretary, and
the Secretary must respond to the request within five days of its
receipt. § 525(c), 30 U.S.C. § 1275 (1976 ed., Supp. III). Section
526(c) of the Act, 30 U.S.C. § 1276(c) (1976 ed., Supp. III),
authorizes judicial review of a decision by the Secretary denying
temporary relief. In addition, cessation orders are subject to
informal administrative review under § 521(a)(5), and formal
administrative review, including an adjudicatory hearing, under §
525(b), 30 U.S.C. § 1275(b) (1976 ed., Supp. III). [
Footnote 42]
Page 452 U. S. 299
The Secretary's decision in the formal review proceeding is
subject to judicial review pursuant to § 52(a)(2), 30 U.S.C. §
1276(a)(2) (1976 ed., Supp. III).
The District Court held that § 521(a)(2)'s authorization of
immediate cessation orders violates the Fifth Amendment because the
statute does not provide sufficiently objective criteria for
summary administrative action. In this regard, the court relied on
its finding that OSM inspectors had issued against a particular
company three immediate cessation orders which were later
overturned on appeal, and that the company involved had suffered
significant losses. The court enjoined the Secretary from issuing
any immediate cessation orders "until such time as Congress makes
provisions to correct the use of subjective criteria by OSM
inspectors." 483 F. Supp. at 448. [
Footnote 43] In addition, the court ruled that, even if
the Act is amended to correct this problem, the 5-day response
period prescribed by the Act does not meet the requirements of due
process. Instead, tie court held that the Secretary must respond
within 24 hours to a mine operator's request for temporary relief
from an immediate cessation order. We find both aspects of the
District Court's reasoning unpersuasive.
Our cases have indicated that due process ordinarily requires an
opportunity for "some kind of hearing" prior to the deprivation of
a significant property interest.
See Parratt v. Taylor,
451 U. S. 527,
451 U. S. 540
(1981);
Boddie v. Connecticut, 401 U.
S. 371,
401 U. S. 379
(1971). The Court has often acknowledged,
Page 452 U. S. 300
however, that summary administrative action may be justified in
emergency situations.
See, e.g., Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U. S. 663,
416 U. S.
677-680 (1974);
Boddie v. Connecticut, supra,
at
401 U. S.
378-379;
Ewing v. Mytinger & Casselberry,
Inc., 339 U. S. 594,
339 U. S.
599-600 (1950);
Fahey v. Mallonee, 332 U.
S. 245,
332 U. S.
253-254 (1947);
Yakus v. United States,
321 U. S. 414,
321 U. S.
442-443 (1944);
Bowles v. Willingham,
321 U. S. 503,
321 U. S.
519-520 (1944);
Phillips v. Commissioner,
283 U. S. 589,
283 U. S.
595-599 (1931);
North American Cold Storage Co. v.
Chicago, 211 U. S. 306,
211 U. S.
315-321 (1908). The question then, is whether the
issuance of immediate cessation orders under § 521(a) falls under
this emergency situation exception to the normal rule that due
process requires a hearing prior to deprivation of a property
right. We believe that it does.
The immediate cessation order provisions reflect Congress'
concern about the devastating damage that may result from mining
disasters. [
Footnote 44]
They represent an attempt to reach an accommodation between the
legitimate desire of mining companies to be heard before submitting
to administrative regulation and the governmental interest in
protecting the public health and safety and the environment from
imminent danger. Protection of the health and safety of the public
is a paramount governmental interest which justifies summary
administrative action. Indeed, deprivation of property to protect
the public health and safety is "[o]ne of the oldest examples" of
permissible summary action.
Ewing v. Mytinger &
Casselberry, Inc., supra, at
339 U. S. 599.
See Mackey v.
Page 452 U. S. 301
Montrym, 443 U. S. 1,
443 U. S. 17-18
(1979);
id. at
443 U. S. 21, n.
1, 25 (STEWART, J., dissenting);
North American Cold Storage
Co. v. Chicago, supra, at
211 U. S.
315-316. Moreover, the administrative action provided
through immediate cessation orders responds to situations in which
swift action is necessary to protect the public health and safety.
This is precisely the type of emergency situation in which this
Court has found summary administrative action justified.
See
Ewing v. Mytinger & Casselberry, Inc., supra; North American
Cold Storage Co. v. Chicago, supra.
Rather than taking issue with any of these principles, the
District Court held that the Act does not establish sufficiently
objective criteria governing the issuance of summary cessation
orders. We disagree. In our judgment, the criteria established by
the Act and the Secretary's implementing regulations are specific
enough to control governmental action and reduce the risk of
erroneous deprivation. Section 701(8) of the Act, 30 U.S.C. §
1291(8) (1976 ed., Supp. III), defines the threat of "imminent
danger to the health and safety of the public" as the existence of
a condition or practice which could
"[r]easonably be expected to cause substantial physical harm to
persons outside the permit area before such condition, practice, or
violation can be abated. A reasonable expectation of death or
serious injury before abatement exists if a rational person,
subjected to the same conditions or practices giving rise to the
peril, would not expose himself or herself to the danger during the
time necessary for abatement. [
Footnote 45] "
Page 452 U. S. 302
If anything, these standards are more specific than the criteria
in other statutes authorizing summary administrative action that
have been upheld against due process challenges.
See, e.g.,
Ewing v. Mytinger & Casselberry, Inc., supra, at
339 U. S.
595-596 ("
dangerous to health . . . or would be in a
material respect misleading to the injury or damage of the
purchaser or consumer'"); Fahey v. Mallonee, supra, at
332 U. S.
250-251, n. 1 ("is unsafe or unfit to manage a Federal
savings and loan association" or "[i]s in imminent danger of
becoming impaired"); Air East, Inc. v. National Transportation
Safety Board, 512 F.2d 1227, 1232 (CA3) ("`emergency requiring
immediate action . . . in respect to air safety in commerce'"),
cert. denied, 423 U.S. 863 (1975).
The fact that OSM inspectors have issued immediate cessation
orders that were later overturned on administrative appeal does not
undermine the adequacy of the Act's criteria, but instead
demonstrates the efficacy of the review procedures. The relevant
inquiry is not whether a cessation order should have been issued in
a particular case, but whether the statutory procedure itself is
incapable of affording due process.
Yakus v. United
States, 321 U.S. at
321 U. S.
431-435. The possibility of administrative error inheres
in any regulatory program; statutory programs authorizing emergency
administrative action prior to a hearing are no exception.
[
Footnote 46] As we
Page 452 U. S. 303
explained in
Ewing v. Mytinger & Casselberry, Inc.,
339 U.S. at
339 U. S.
599:
"Discretion of any official action may be abused. Yet it is not
a requirement of due process that there be judicial inquiry before
discretion can be exercised. It is sufficient, where only property
rights are concerned, that there is at some stage an opportunity
for a hearing and a judicial determination."
Here, mine operators are afforded prompt and adequate
postdeprivation administrative hearings and an opportunity for
judicial review. We are satisfied that the Act's immediate
cessation order provisions comport with the requirements of due
process.
We also conclude that the District Court erred in reducing the
statutorily prescribed time period for the Secretary's response to
requests for temporary relief. In the first place, the 5-day period
is a statutory maximum, and there is no indication in the record
that the Secretary has not responded or will not respond in less
than five days. Second, appellees have not demonstrated that they
have been adversely affected by the 5-day response period in a
particular case, or that it is generally unreasonable. In addition,
no evidence was introduced to show that a shorter reply period is
administratively feasible. In these circumstances, there simply is
no basis for the District Court's decision to substitute a judicial
policy preference for the scheme adopted by Congress.
Cf.
Vermont Yankee Nuclear Corp. v. Natural Resources Defense Council,
Inc., 435 U. S. 519
(1978). Accordingly, we turn to the District Court's holding that
other sections of the Act violate the Fifth Amendment's Due Process
Clause.
B
The District Court ruled that the Act's civil penalty provisions
do not comport with the requirements of due process. Under these
provisions, the Secretary is to notify the recipient of a notice of
violation or a cessation order of the proposed
Page 452 U. S. 304
amount of any civil penalty that is to be assessed against it. §
518(c), 30 U.S.C. § 1268(c) (1976 ed., Supp. III). Section 518(c)
further states that, if the operator "wishes to contest either the
amount of the penalty or the fact of the violation," it must
"forward the proposed amount to the Secretary for placement in an
escrow account." [
Footnote
47] Once the escrow requirement is met, the operator receives a
full adjudicatory hearing before an administrative law judge, with
a right of appeal to an administrative board and judicial review of
the final decision.
See 30 U.S.C. § 1276(a)(2) (1976 ed.,
Supp. III). If, after administrative or judicial review, it is
determined that no violation occurred or that the amount of the
proposed penalty should be reduced, the appropriate amount must
promptly be refunded to the operator with interest. 30 U.S.C. §
1268(c) (1976 ed., Supp. III).
In challenging the Act's civil penalty provisions, appellees did
not allege that they, or any one of them, have had civil penalties
assessed against them. Moreover, the District Court did not find,
as it did in ruling on the immediate cessation order provisions,
that any of appellee coal mine operators have been affected or
harmed by any of the statutory procedures for the assessment and
collection of fines. Thus, the record in these cases belies any
suggestion that there is a concrete case or controversy concerning
the operation of these provisions. In these circumstances, we must
conclude that appellees' challenge is premature, and that it was
improper for the court below to render a decision on this
claim.
VI
Our examination of appellees' constitutional challenges to the
Surface Mining Act persuades us that the Act is not
Page 452 U. S. 305
vulnerable to their preenforcement challenge. Accordingly, we
affirm the judgment of the District Court upholding the Act against
appellees' Commerce Clause attack (No. 79-1596), and we reverse the
judgment below insofar as it held various provisions of the Act
unconstitutional (No. 79-1538). The cases are remanded to the
District Court with instructions to dissolve the injunction issued
against the Secretary, and for further proceedings consistent with
this opinion.
So ordered.
* Together with No. 79-1596,
Virginia Surface Mining &
Reclamation Association, Inc., et al. v. Hodel, Acting Secretary of
the Interior, et al., also on appeal from the same court.
[
Footnote 1]
The Commerce Clause empowers Congress "[t]o regulate Commerce
with foreign Nations and among the several States, and with the
Indian Tribes." U.S.Const., Art. I, § 8, cl. 3.
[
Footnote 2]
Other provisions of the Act are, by their own terms, made
effective during the interim period. One example is § 522(e), 30
U.S.C. § 1272(e) (1976 ed., Supp. III), which prohibits, with some
exceptions, surface coal mining on certain lands or within
specified distances of particular structures or facilities.
[
Footnote 3]
Under §§ 502(b),(c) of the Act, 30 U.S.C. §§ 1252(b),(c) (1976
ed., Supp. III), the interim standards are applicable only to
surface mining operations in States that were themselves regulating
surface mining when the Act became law. All States in which surface
mining was conducted on private lands had regulatory programs of
their own when the Act was passed in 1977. Accordingly, the interim
program became applicable in all relevant areas throughout the
country, including Virginia.
[
Footnote 4]
New surface mining operations, excluding those on "Federal
lands" or "Indian lands," commencing on or after February 3, 1978,
must comply with the performance standards established by the
interim regulatory program at the start of operations. And, with
certain limited exceptions, surface mining operations begun prior
to February 3, 1978, were required to be in compliance with the
interim regulations as of May 3, 1978. §§ 502(b),(c), and 701(11),
30 U.S.C. §§ 1252(b),(c), and 1291(11) (1976 ed., Supp. III).
Some of the interim regulations were challenged in the United
States District Court for the District of Columbia pursuant to §
526(a)(1) of the Act, 30 U.S.C. § 1276(a)(1) (1976 ed., Supp. III).
In re Surface Mining Regulation Litigation, 452 F.
Supp. 327 (1978);
In re Surface Mining Regulation
Litigation, 456 F.
Supp. 1301 (1978),
aff'd in part and rev'd in part,
201 U.S.App.D.C. 360, 627 F.2d 1346 (1980). The plaintiffs in the
District of Columbia litigation also challenged the validity of a
number of the statutory provisions that are at issue in the instant
cases. The District Court sustained the validity of those
provisions, 456 F. Supp. at 1319-1321, and the attack was not
renewed on appeal.
[
Footnote 5]
Congress encouraged such assistance by providing for financial
reimbursements to States that actively assist the federal
enforcement effort during the interim phase.
See 30 U.S.C.
§ 1252(e)(4) (1976 ed., Supp. III) .
[
Footnote 6]
A separate regulatory program governing "Federal lands" is
established by § 523 of the Act, 30 U.S.C. § 1273 (1976 ed., Supp.
III). The term "Federal lands" is defined in § 701(4), 30 U.S.C. §
1291 (4) (1976 ed., Supp. III). Section 710 of the Act, 30 U.S.C. §
1300 (1976 ed., Supp. III), regulates surface mining on "Indian
lands."
[
Footnote 7]
The proposed state programs were to have been submitted by
February 3, 1979 -- 18 months after the Act was passed. Exercising
his authority under § 504(a), the Secretary extended the deadline
until August 3, 1979.
See 44 Fed.Reg. 15324 (1979).
Because the Secretary's , 1979, publication of the permanent
regulations occurred seven months after the date set by the Act,
see 30 U.S.C. § 1251(b) (1976 ed., Supp. III), the United
States District Court for the District of Columbia further extended
the deadline for submission of state programs to and including
March 3, 1980.
In re Permanent Surface Mining Regulation
Litigation, Civ. No. 79-1144 (DC July 25 and Aug. 21, 1979).
See also 44 Fed.Reg. 60969 (1979) (announcing conforming
changes in the Secretary's regulations governing submission of
state programs).
With the exception of Alaska, Georgia, and Washington, all
States in which surface mining is either conducted or is expected
to be conducted submitted proposed state programs to the Secretary
by March 3, 1980. The Secretary has made his initial decisions on
these programs. Three programs were approved, 8 were approved on
condition that the States agree to some modifications, 10 were
approved in part and disapproved in part, and 3 were disapproved
because the state legislatures had failed to enact the necessary
implementing statutes. Virginia's program was among those approved
in part and disapproved in part.
See 45 Fed.Reg. 69977
(1980). Under § 503 of the Act, a State may revise a plan that has
been disapproved in whole or in part and resubmit it to the
Secretary within 60 days of his initial decision.
[
Footnote 8]
The Virginia Citizens for Better Reclamation, Inc., and the town
of St. Charles, Va., intervened as defendants in support of the
Secretary.
[
Footnote 9]
Plaintiffs also challenged Title IV of the Act, 30 U.S.C. §§
1231-1243 (1976 ed., Supp. III), which establishes a reclamation
program for abandoned mines. The District Court, held, however,
that it would exercise its discretion by "not grant[ing]
declaratory judgments as to the provisions of that title."
483 F.
Supp. 425, 429 (1980). There is no appeal from this portion of
the District Court's judgment.
[
Footnote 10]
The Due Process Clause of the Fifth Amendment states that no
person shall "be deprived of life, liberty, or property, without
due process of law."
[
Footnote 11]
Under the Tenth Amendment,
"[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."
[
Footnote 12]
The Compensation Clause prohibits the taking of private property
"for public use, without just compensation."
[
Footnote 13]
The District Court denied the Secretary's motion for a stay
pending direct appeal to this Court. At the same time, the court
issued an order and opinion clarifying and modifying its earlier
order. App. to Juris.Statement in No. 71538, pp. 1a-16a (J.S.App.).
Upon the Secretary's application, we issued an order staying the
District Court's judgment "pending the timely filing and
disposition of the appeal[s] in this Court."
[
Footnote 14]
Plaintiffs do not appeal from that portion of the District
Court's judgment rejecting their equal protection and substantive
due process challenges to the Act.
[
Footnote 15]
The jurisdiction of this Court was invoked under 28 U.S.C. §
1252, which provides for direct appeal to this Court from any
decision by a court of the United States invalidating an Act of
Congress in any suit to which the United States, its agencies,
officers, or employees are parties.
[
Footnote 16]
We also agreed to hear the appeal in No. 80-231,
Hodel v.
Indiana, which involves similar constitutional challenges to
different provisions of the Surface Mining Act, and which we also
decide today.
Post p.
452 U. S. 314. At
least three other District Courts have considered constitutional
challenges to provisions of the Surface Mining Act. In
Concerned Citizens of Appalachia, Inc. v.
Andrus, 494 F.
Supp. 679 (ED Tenn.1980),
appeal pending, No. 81-488
(CA6), the District Court upheld the Act in the face of challenges
similar to those raised by plaintiffs in the instant case. In
Star Coal Co. v. Andrus, No. 79-171-2 (SD Iowa, Feb. 13,
1980),
appeal dism'd, No. 80-1284 (CA8), the District
Court rejected challenges based on the Fifth and Tenth Amendments,
but enjoined some of the Act's enforcement provisions. And in
Andrus v. P-Burg Coal Co., 495 F.
Supp. 82 (SD Ind.1980),
aff'd, 644 F.2d 1231 (CA7
1981), the District Court rejected a Commerce Clause challenge to
the Act.
[
Footnote 17]
Appellees cite cases such as
Village of Belle Terre v.
Boraas, 416 U. S. 1 (1974);
Berman v. Parker, 348 U. S. 26
(1954);
Euclid v. Ambler Realty Co., 272 U.
S. 365 (1926).
[
Footnote 18]
The Property Clause provides:
"The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other
Property belonging to the United States."
U.S.Const., Art. IV, § 3, cl. 2.
[
Footnote 19]
Hearings on proposed legislation regulating surface coal mining
began in 1968. Surface Mining Reclamation: Hearings before the
Senate Committee on Interior and Insular Affairs, 90th Cong., 2d
Sess. (1968). Three years later, additional hearings were held by
Committees of both the House and the Senate. Regulation of Strip
Mining: Hearings before the Subcommittee on Mines and Mining of the
House Committee on Interior and Insular Affairs, 92d Cong., 1st
Sess. (1971); Surface Mining: Hearings before the Subcommittee on
Minerals, Materials and Fuels of the Senate Committee on Interior
and Insular Affairs, 92d Cong., 1st Sess. (1972). The Committees
reported bills for consideration by their respective Houses. The
House passed H.R. 6482, but Congress adjourned before the Senate
could act on the measure.
Similar bills were reintroduced in the 93d Congress, and further
hearings were held. Regulation of Surface Mining Operations:
Hearings before the Senate Committee on Interior and Insular
Affairs, 93d Cong., 1st Sess. (1973); Regulation of Surface Mining:
Hearings before the Subcommittee on the Environment and the
Subcommittee on Mines and Mining of the House Committee on Interior
and Insular Affairs, 93d Cong. 1st Sess. (1973). At the request of
the Chairman of the Senate Committee, the Council on Environmental
Quality prepared a report entitled Coal Surface Mining and
Reclamation: An Environmental and Economic Assessment of
Alternatives (Comm. Print 1973), and the Senate Committee held
additional hearings to consider the report. Coal Surface Mining and
Reclamation: Hearings before the Subcommittee on Minerals,
Materials and Fuels of the Senate Committee on Interior and Insular
Affairs, 93d Cong., 1st Sess. (1973). The House and Senate
Committees reported bills for consideration by both Houses, and
Congress passed a bill that was vetoed by President Ford in
1974.
The surface mining legislation was reintroduced in the 94th
Congress in 1975, and the Senate Committee held a hearing on
administration objections to the bill. Surface Mining Briefing:
Briefing before the Senate Committee on Interior and Insular
Affairs, 94th Cong., 1st Sess. (1975). Both Committees reported
bills to the House and Senate, which again passed a bill reported
by the Conference Committee. President Ford again vetoed the
bill.
The protracted congressional endeavor finally bore fruit in
1977. The relevant House and Senate Committees held extensive
hearings shortly after the opening of the 95th Congress to consider
bills introduced at the very beginning of the new legislative
session. Surface Mining Control and Reclamation Act of 1977:
Hearings on S. 7 before the Subcommittee on Public Lands and
Resources of the Senate Committee on Energy and Natural Resources,
95th Cong., 1st Sess. (1977) (1977 Senate Hearings); Surface Mining
Control and Reclamation Act of 1977: Hearings on H.R. 2 before the
Subcommittee on Energy and the Environment of the House Committee
on Interior and Insular Affairs, 95th Cong., 1st Sess. (1977) (1977
House Hearings). The legislation was reported to both Houses and
passage in both Chambers followed, after lengthy floor debate. 123
Cong.Rec. 12861-12886, 15691-15755 (1977). The Conference Committee
Report as issued in July, 1977, H.R.Conf.Rep. No. 95-493 (1977),
and after further floor debate, both Houses agreed to the bill
recommended by the conferees. 123 Cong.Rec. 23967-23988,
24419-24429 (1977). President Carter signed the Act into law on
August 3, 1977. The legislative history of the Act is summarized in
S.Rep. No. 95-128, pp 59-61 (1977), and in H.R.Rep. No. 95-218, pp.
140-141 (1977).
See also Note, 81 W.Va.L.Rev. 775
(1979).
[
Footnote 20]
Appellees do contend that surface mining enhances, rather than
diminishes, the utility of land in the steep-slope areas of
Virginia. Congress, however, made contrary findings, and it is
sufficient for purposes of judicial review that Congress had a
rational basis for concluding as it did.
See Kleppe v. New
Mexico, 426 U. S. 529,
426 U. S. 541,
n. 10 (1976);
United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S.
152-154 (1938).
[
Footnote 21]
See, e.g., United States v. Byrd, 609 F.2d 1204,
1209-1210 (CA7 1979);
Bethlehem Steel Corp. v. Train, 544
F.2d 657, 663 (CA3 1976);
Sierra Club v. EPA, 176
U.S.App.D.C. 335, 360, 540 F.2d 1114, 1139 (1976),
cert.
denied, 430 U.S. 959 (1977);
District of Columbia v.
Train, 172 U.S.App.D.C. 311, 328, 521 F.2d 971, 988 (1975),
vacated and remanded on other grounds sub nom. EPA v.
Brown, 431 U. S. 99
(1977);
United States v. Ashland Oil & Transportation
Co., 504 F.2d 1317, 1325 (CA6 1974);
Pennsylvania v.
EPA, 500 F.2d 246, 259 (CA3 1974);
South Terminal Corp. v.
EPA, 504 F.2d 646, 677 (CA1 1974);
United States v. Bishop
Processing Co., 287 F.
Supp. 624 (Md.1968),
aff'd, 423 F.2d 469 (CA4),
cert. denied, 398 U.S. 904 (1970).
[
Footnote 22]
Section 515(d)(4), 30 U.S.C. § 1265(d)(4) (1976 ed., Supp. III),
defines a "steep slope" as
"any slope above twenty degrees or such lesser slope as may be
defined by the regulatory authority after consideration of soil,
climate, and other characteristics of a region or State."
[
Footnote 23]
The term "approximate original contour" is defined as
"that surface configuration achieved by backfilling and grading
of the mined area so that the reclaimed area, including any
terracing or access roads, closely resembles the general surface
configuration of the land prior to mining and blends into and
complements the drainage pattern of the surrounding terrain, with
all highwalls and spoil piles eliminated."
§ 701(2), 30 U.S.C. § 1291(2) (1976 ed., Supp. III).
[
Footnote 24]
Section 515(c), 30 U.S.C. § 1265(c) (1976 ed., Supp. III),
establishes a separate variance procedure for mountaintop mining
operations.
[
Footnote 25]
The court reasoned that, although the Act allows a State to
elect to have its own regulatory program, the "choice that is
purportedly given is no choice at all," because the state program
must comply with federally prescribed standards. 483 F. Supp. at
432.
[
Footnote 26]
On the basis of the evidence presented at trial, the court found
that post-mining restoration of steep slopes to their "approximate
original contour" is "economically infeasible and physically
impossible."
Id. at 434. The court noted that the steep
slope provisions particularly affect Virginia, because 95% of its
coal reserves are located on such lands. And the court indicated
that several coal mine operators had been forced to shut down
because they were unable to comply with the Act's requirements,
with adverse consequences for the economies of various towns and
counties that are dependent on coal mining. The court also found
that there is a need for level land in the counties of the Virginia
coal fields, and it concluded that the Act's reclamation provisions
would prevent "forward-looking land use planning" by the State.
Ibid. Finally, the court found that restoration of mined
land to its original contour would diminish the value of the land
from the $5,000-$300,000 an acre value of level land to the $5-$75
per acre value of steep slope land.
[
Footnote 27]
In its order and opinion accompanying its denial of the
Secretary's request for a stay of its judgment pending appeal,
see n 13,
supra, the District Court explained that the injunction
against enforcement of the steep slope standards was not intended
to "allo[w] spoil to be placed on the downslope in an uncontrolled
manner." The court stated that
"[a]ny such downslope spoil placement shall be in a controlled
manner meeting environmental protection standards specified by the
regulatory authority."
J.S.App. 2a.
[
Footnote 28]
National League of Cities expressly left open the
question
"whether different results might obtain if Congress seeks to
affect integral operations of state governments by exercising
authority granted it under other sections of the Constitution, such
as the spending power, Art. I, § 8, cl. 1, or § 5 of the Fourteenth
Amendment."
426 U.S. at
426 U. S. 852,
n. 17. In
Fitzpatrick v. Bitzer, 427 U.
S. 445 (1976), the Court upheld Congress' power under §
5 of the Fourteenth Amendment to authorize private damages actions
against state governments for discrimination in employment. The
Court explained that, because the Amendment was adopted with the
specific purpose of limiting state autonomy, constitutional
principles of federalism do not restrict congressional power to
invade state autonomy when Congress legislates under § 5 of the
Fourteenth Amendment.
Id. at
426 U. S.
452-456. Similarly, in
City of Rome v. United
States, 446 U. S. 156,
446 U. S. 179
(1980), we held that the Tenth Amendment places no restrictions on
congressional power "to enforce the Civil War Amendments
by
appropriate legislation.'"
[
Footnote 29]
Demonstrating that these three requirements are met does not,
however, guarantee that a Tenth Amendment challenge to
congressional commerce power action will succeed. There are
situations in which the nature of the federal interest advanced may
be such that it justifies state submission.
See Fry v. United
States, 421 U. S. 542
(1975),
reaffirmed in National League of Cities v. Usery,
426 U.S. at
426 U. S.
852-853.
See also id. at
426 U. S. 856
(BLACKMUN, J., concurring).
[
Footnote 30]
See, e.g., United States v. Helsley, 615 F.2d 784 (CA9
1979) (upholding the Airborne Hunting Act, 16 U.S.C. § 742j-1);
Friends of the Earth, Inc. v. Carey, 552 F.2d 25, 36-39
(CA2) (upholding the Clean Air Act, 42 U.S.C. § 7401
et
seq. (1976 ed., Supp. III)),
cert. denied, 434 U.S.
902 (1977);
Sierra Club v. EPA, 176 U.S.App.D.C. 335, 359,
540 F.2d 1114, 1140 (1976) (upholding the Clean Water Act, 33
U.S.C. § 1251
et seq.),
cert. denied, 430 U.S.
959 (1977).
[
Footnote 31]
See supra at
452 U. S. 283.
It is significant that the Commonwealth of Virginia presses its
Tenth Amendment challenge to the Act simply as another regulator of
surface coal mining whose regulatory program has been displaced or
preempted by federal law. As indicated in text, there are no Tenth
Amendment concerns in such situations.
[
Footnote 32]
This holding disposes of the contention by appellees and various
amici that the Surface Mining Act is unconstitutional
because it presumes the existence of a federal police power. As the
Court has stated:
"The authority of the federal government over interstate
commerce does not differ in extent or character from that retained
by the states over intrastate commerce."
United States v. Darby, 312 U.S. at
312 U. S. 116,
quoting
United States v. Rock Royal Cooperative,
307 U. S. 533,
307 U. S.
569-570 (1939).
[
Footnote 33]
The remaining justification asserted by the District Court for
its Tenth Amendment ruling, one that appellees urge here, is that
the steep slope mining requirements will harm Virginia's economy
and destroy the taxing power of some towns and counties in the
Commonwealth. In this regard, the court may have been influenced by
the discussion in
National League of Cities about the
likely effects of the challenged regulations on the finances of
state and local governments.
National League of Cities v.
Usery, 426 U.S. at
426 U. S.
846-847. But as the Court made clear, the determinative
factor in that case was the nature of the federal action, not the
ultimate economic impact on the States.
Id. at
426 U. S. 847.
Moreover, even if it is true that the Act's requirements will have
a measurable impact on Virginia's economy, this kind of effect,
standing alone, is insufficient to establish a violation of the
Tenth Amendment. In
Oklahoma v. Atkinson Co., 313 U.
S. 508,
313 U. S.
534-535 (1941), the Court rejected the assertion that an
adverse impact on state and local economies is a barrier to
Congress' exercise of its power under the Commerce Clause to
regulate private activities affecting interstate commerce. We are
not persuaded that there are compelling reasons presented in the
instant cases for reversing the Court's position.
[
Footnote 34]
We have assumed that the District Court correctly held that land
use regulation is an "integral governmental function" as that term
was used in
National League of Cities. Our resolution of
the Tenth Amendment challenge to the Act makes it unnecessary for
us to decide whether this is actually the case.
[
Footnote 35]
The District Court acknowledged the existence of a statutory
procedure for requesting variances from the steep slope provisions.
But the court suggested that the statutory requirement that
highwalls of reclaimed mining cuts be completely covered makes this
variance procedure "meaningless" to steep slope mine operators. 483
F. Supp. at 437. This conclusion was premature.
See
n 3,
infra.
[
Footnote 36]
With certain specified exceptions, and subject to "valid
existing rights," § 522(e) prohibits surface mining operations in
national parks and forests, or where they will adversely affect
publicly owned parks or places that are included in the National
Register of Historic Sites. 30 U.S.C. §§ 1272(e)(1), (2), and (3)
(1976 ed., Supp. III). It also prohibits surface mining within 100
feet of a cemetery or the right-of-way of a public road, and within
300 feet of an occupied dwelling, public building, school, church,
community or institutional building, or public park. §§ 522(e)(4)
and (5).
Sections 522(a), (c), and (d), which become applicable during
the permanent phase of the regulatory program, require the
establishment of procedures for designating particular lands as
unsuitable for some or all surface mining. 30 U.S.C. §§ 1272(a),
(c), and (d) (1976 ed., Supp. III). The District Court's ruling
that these latter provisions effect an unconstitutional taking of
private property is puzzling, and cannot stand. Since these
provisions do not come into effect until the permanent phase of the
Act's regulatory program, they have not been applied to appellees
or any other private landowner in Virginia. In these circumstances,
there was no justiciable case or controversy with regard to these
sections of the Act.
See United Public Workers v.
Mitchell, 330 U. S. 75,
330 U.S. 89-91 (1947).
[
Footnote 37]
Although § 522(e) prohibits any surface coal mining in certain
areas, appellees' "taking" challenge to this provision is
premature. First, appellees made no showing in the District Court
that they own tracts of land that are affected by this provision.
Second, § 522(e) does not, on its face, deprive owners of land
within its reach of economically viable use of their land, since it
does not proscribe nonmining uses of such land. Third, § 522(e)'s
restrictions are expressly made subject to "valid existing rights."
Appellees contend that this exception
"applies only to specific surface mining operations for which
all required permits were issued prior to August 3, 1977, the
effective date of the Act."
Brief for Virginia Surface Mining Reclamation Association, Inc.,
et al. 48. This interpretation of the exception is not
compelled by either the statutory language or its legislative
history.
See H.R.Rep. No. 95-218, p. 95 (1977). It is
apparently based on 30 CFR § 761.5(a)(2)(i) (1980), a regulation
promulgated by the Secretary. That regulation, however, was
remanded to the Secretary for reconsideration by the United States
District Court for the District of Columbia.
In re Permanent
Surface Mining Regulation Litigation, 14 ERC 1083, 1091
(1980),
appeals pending, No. 80-1810
et al.
(CADC). The Secretary did not ask the Court of Appeals to review
this portion of the District Court's judgment.
[
Footnote 38]
If, as the District Court found, level land in the steep slope
areas of Virginia is worth $5,000-$300,000 per acre, some
landowners presumably retain the option of simply leveling the land
without first mining the coal. Moreover, if flat benchland is truly
as valuable as the court below found, there should be no financial
impediment to the reestablishment of flat areas on the sites of
some old mining operations, once those areas have been restored and
stabilized in the manner required by the Act.
[
Footnote 39]
The District Court's conclusion that the steep slope variance
procedure in § 515(e) does not offer a meaningful opportunity for
administrative relief was premature. Appellees did not identify any
instance in which the statutory obligation to cover the highwall
had prevented a mine operator from taking advantage of the variance
procedure.
[
Footnote 40]
Although we conclude that "mere enactment" of the Act did not
effect a taking of private property, this holding does not preclude
appellees or other coal mine operators from attempting to show
that, as applied to particular parcels of land, the Act and the
Secretary's regulations effect a taking. Even then, such an alleged
taking is not unconstitutional unless just compensation is
unavailable.
See Duke Power Co. v. Carolina Environmental Study
Group, Inc., 438 U. S. 59,
438 U. S. 94, n.
39 (1978);
Regional Rail Reorganization Act Cases,
419 U. S. 102,
419 U. S.
125-136 (1974);
Larson v. Domestic Foreign Commerce
Corp., 337 U. S. 682,
337 U. S. 697,
n. 18 (1949).
[
Footnote 41]
Where the Secretary determines that a violation of the Act or of
a permit condition does not entail such a serious threat, he must
issue a notice of violation fixing a reasonable time for abatement.
§ 521(a)(3), 30 U.S.C. § 1271(a)(3) (1976 ed., Supp. III). If the
violation is not abated within the prescribed period, the Secretary
must immediately order total or partial cessation of the offending
mining operation.
[
Footnote 42]
Under § 521(a)(5), 30 U.S.C. § 1271(a)(5) (1976 ed., Supp. III)
cessation orders automatically expire after 30 days
"unless a public hearing is held at the site or within such
reasonable proximity to the site that any viewings of the site can
be conducted during the course of the public hearing."
[
Footnote 43]
The District Court's January 21, 1980, supplemental order and
opinion,
see n 13,
supra, explained that its injunction did not apply to
immediate cessation orders issued pursuant to § 521(a)(3) against
mine operators who had failed to abate violations within the time
period specified in the notice of violation. J.S.App. 2a-3a.
[
Footnote 44]
The legislative history of § 521(a)(2) indicates that Congress
viewed the Secretary's power to issue immediate cessation orders as
critical, and that the measure was primarily intended to avert the
possible occurrence of such disasters as the Buffalo Creek flood.
See H.R.Rep. No. 95-218, pp. 129-130 (1977); S.Rep. No.
95-128, pp. 9091 (1977). The Buffalo Creek flood was caused by the
sudden collapse of a coal mine waste impoundment dam in 1972 near
Buffalo Creek, W.Va. The flood left 124 persons dead and rendered
4,000 persons homeless.
See H.R.Rep. No. 94-1445, p.19
(1976).
[
Footnote 45]
The Secretary's regulations define "a significant, imminent
environmental harm" in the following terms:
"(a) An environmental harm is any adverse impact on land, air,
or water resources, which resources include, but are not limited
to, plant and animal life."
"(b) An environmental harm is imminent, if a condition,
practice, or violation exists which -- (1) Is causing such harm, or
(2) May reasonably be expected to cause such harm at any time
before the end of the reasonable abatement time that would be set
under Section 521(a)(3) of the Act."
"(c) An environmental harm is significant if that harm is
appreciable and not immediately reparable."
30 CFR §§ 700.5 and 701.5 (1980).
[
Footnote 46]
A different case might be presented if a pattern of abuse and
arbitrary action were discernible from review of an agency's
administration of a summary procedure. Although the District Court
sought to characterize the OSM's record in issuing cessation orders
in these terms, a showing that three cessation orders were
overturned on administrative appeal is far from sufficient to
establish a pattern of abuse and arbitrary action.
[
Footnote 47]
However, no penalties are finally imposed until the alleged
offender has been provided an opportunity for a public hearing.
Section 518(b) provides:
"A civil penalty shall be assessed by the Secretary only after
the person charged with a violation . . . has been given an
opportunity for a public hearing."
30 U.S.C. § 1268(b) (1976 ed., Supp. III).
THE CHIEF JUSTICE, concurring.*
I agree largely with what JUSTICE REHNQUIST has said about the
"fictions" concerning delegation, and the gradual case-by-case
expansion of the reach of the Commerce Clause.
I agree fully with his view that we often seem to forget the
doctrine that laws enacted by Congress under the Commerce Clause
must be based on a
substantial effect on interstate
commerce. However, I join the Court's opinions in these cases and
in No. 80-231 because, in them, the Court acknowledges and
reaffirms that doctrine.
See, e.g., ante at
452 U. S.
280.
* [This opinion applies also to No. 8231,
Hodel, Acting
Secretary of the Interior, et al. v. Indiana et al., post, p.
452 U. S.
314.]
JUSTICE POWELL, concurring.
The Surface Mining Act mandates an extraordinarily intrusive
program of federal regulation and control of land use and land
reclamation, activities normally left to state and local
governments. But the decisions of this Court over many years make
clear that, under the Commerce Clause, Congress has the power to
enact this legislation.
The Act could affect seriously the owners and lessees of the
land and coal in the seven westernmost counties of Virginia. The
Federal Government is required by the Fifth Amendment to pay just
compensation for any "taking" of private
Page 452 U. S. 306
property for public use. [
Footnote
2/1]
See San Diego as & Electric Co. v. City of San
Diego, 450 U. S. 621,
450 U. S. 654
(1981) (BRENNAN, J., dissenting). [
Footnote 2/2] But whether there has been such a "taking"
and, if so, the amount of just compensation, are questions to be
decided in specific cases.
Agins v. Tiburon, 447 U.
S. 255,
447 U. S. 260
(1980);
Kaiser Aetna v. United States, 444 U.
S. 164,
444 U. S. 175
(1979). I agree with the Court, therefore, that it is premature to
consider in these cases questions under the Compensation Clause.
Ante at
452 U. S.
293-297. Appellees have identified no specific property
that is alleged to have been taken. The Court's decision thus is
confined to a holding that the Act, in this respect, is not
facially unconstitutional.
Ante at
452 U. S. 297,
n. 40. The "taking" issue remains available to, and may be
litigated by, any owner or lessee whose property interest is
adversely affected by the enforcement of the Act. [
Footnote 2/3] I add a word about the area of
Virginia that will be affected by this Act, as its location,
topography, and geology are highly relevant to an understanding of
the "taking" question. Bituminous coal, Virginia's most valuable
natural resource, [
Footnote 2/4] is
found in a region marked by steep mountain slopes, sharp ridges,
massive outcrops of rock, and narrow valleys -- conditions that
severely limit alternative uses of the land. Because of thin soil
and rugged terrain, the land in its natural state is not suited for
agricultural use or the growing of merchantable timber. Its value
lies, in most instances,
Page 452 U. S. 307
solely in its coal. Mining the coal is a major industrial
activity in an otherwise impoverished area of Virginia. [
Footnote 2/5]
A number of the Act's provisions appear to have been written
with little comprehension of its potential effect on this rugged
area. For example, the requirement in § 515(d) that steep slope
areas be restored approximately to their original contours seems
particularly unrealistic. As the District Court found, 95% of the
strippable coal lands in Virginia are located on slopes in excess
of 20 degrees.
483 F.
Supp. 425, 44 (1980). The cost of restoration in some
situations could exceed substantially the value of the coal. In any
event, restoring steep mountain slopes often would diminish, rather
than increase, the land's worth.
In sum, if the Act is implemented broadly in accordance with its
terms, the consequences to individual lessees and owners, and to
the area as a whole, could be far-reaching. But adjudication of
claims arising from such implementation is for the future. I agree
with the Court that we cannot say that the Act is facially invalid,
and I therefore join its opinion.
[
Footnote 2/1]
We assume, of course, that Congress weighed this probable cost
against the desirable environmental goals of the Act.
[
Footnote 2/2]
The "taking" question considered by JUSTICE BRENNAN and the
three Justices who joined him was not reached by a majority of the
Court.
[
Footnote 2/3]
In
Agins, 447 U.S. at
447 U. S. 260,
we observed that the
"determination that government action constitutes a taking is,
in essence, a determination that the public at large, rather than a
single owner, must bear the burden of an exercise of state power in
the public interest."
[
Footnote 2/4]
The District Court found that the mining of coal is a $2 billion
per year industry in the Commonwealth.
[
Footnote 2/5]
It is said, perhaps frivolously now, that bootlegging was the
second most remunerative activity in that part of the State.
JUSTICE REHNQUIST, concurring in the judgment.*
It is illuminating for purposes of reflection, if not for
argument, to note that one of the greatest "fictions" of our
federal system is that the Congress exercises only those powers
delegated to it, while the remainder are reserved to the States or
to the people. The manner in which this Court has construed the
Commerce Clause amply illustrates the extent of this fiction.
Although it is clear that the people, through the States, delegated
authority to Congress to "regulate Commerce . . . among the several
States," U.S.Const., Art. I,
Page 452 U. S. 308
§ 8, cl. 3, one could easily get the sense from this Court's
opinions that the federal system exists only at the sufferance of
Congress.
As interpreted by the Court, Congress' power under the Commerce
Clause is broad indeed. The power has evolved through the years to
include not simply the regulation of interstate commerce itself, as
in
Gibbons v.
Ogden, 9 Wheat. 1 (1824), but also the power
"to exclude from the commerce articles whose use in the states
for which they are destined it may conceive to be injurious to the
public health, morals or welfare, even though the state has not
sought to regulate their use."
United States v. Darby, 312 U.
S. 100,
312 U. S. 114
(1941).
In the Shreveport Rate Case, 234 U.
S. 342,
234 U. S. 351
(1914), the Court upheld the action of Congress in regulating the
rates of intrastate railroads, reasoning that the commerce power
included the power to "control . . . all matters having such a
close and substantial relation to interstate traffic. . . ." In
NLRB v. Jones & Laughlin Steel Corp., 301 U. S.
1 (1937), the Court rejected the notion that certain
kinds of activity were not in "commerce," such as manufacturing,
cf. United States v. E. C. Knight Co., 156 U. S.
1 (1895), and concluded that Congress may regulate labor
relations in any manufacturing plant because a work stoppage at any
such plant "would have a most serious effect upon interstate
commerce." 301 U.S. at
301 U. S. 41. And
in
Wickard v. Filburn, 317 U. S. 111
(1942), the Court expanded the scope of the Commerce Clause to
include the regulation of acts which, taken alone, might not have a
substantial economic effect on interstate commerce, such as a wheat
farmer's own production, but which might reasonably be deemed
nationally significant in their cumulative effect, such as altering
the supply and demand relationships in the interstate commodity
market.
See also Perez v. United States, 402 U.
S. 146,
402 U. S. 154
(1971) ("Where the
class of activities is regulated and
that class is within the reach of federal power, the courts have no
power
to excise, as trivial, individual instances' of the
class"). As
Page 452 U. S.
309
summarized by one commentator:
"In recent years, Congress has relied upon the 'cumulative
effect' principle as its constitutional justification for civil
rights legislation, certain criminal statutes, regulatory measures
affecting the sale of foods and additives, and a registration law
for drug producers. In each case, congressional factfindings
stressed that the regulation of local incidents of an activity was
necessary to abate a cumulative evil affecting national
commerce."
L. Tribe, American Constitutional Law 237 (1978).
Despite the holdings of these cases, and the broad dicta often
contained therein, there are constitutional limits on the power of
Congress to regulate pursuant to the Commerce Clause. As Chief
Justice Hughes explained:
"Undoubtedly the scope of this power must be considered in light
of our dual system of government and may not be extended so as to
embrace effects on interstate commerce so indirect and remote that
to embrace them, in view of our complex society, would effectually
obliterate the distinction between what is national and what is
local and create a completely centralized government."
NLRB v. Jones Laughlin Steel Corp., supra, at
301 U. S. 37.
And Justice Cardozo, in his cogent writing on the subject, often
expressed his concern about too broad a reading of the commerce
power. In his concurring opinion in Schechter Poultry Corp. v.
United States,
295 U. S. 495,
295 U. S.
554-555 (1935), he observed:
"There is a view of causation that would obliterate the
distinction between what is national and what is local in the
activities of commerce. Motion at the outer rim is communicated
perceptibly, though minutely, to recording instruments at the
center. A society such as ours 'is an elastic medium which
transmits all tremors throughout its territory; the only question
is of size.' . . . The law is not indifferent to considerations of
degree. Activities local in their immediacy do not become
interstate
Page 452 U. S. 310
and national because of distant repercussions. . . . To find
immediacy or directness here is to find it almost everywhere. If
centripetal forces are to be isolated to the exclusion of the
forces that oppose and counteract them, there will be an end to our
federal system."
Justice Cardozo elaborated on this point in his separate opinion
in
Carter v. Carter Coal Co., 298 U.
S. 238,
298 U. S. 327
(1936).
"Mining and agriculture and manufacture are not interstate
commerce considered by themselves, yet their relationship to that
commerce may be such that, for the protection of the one, there is
need to regulate the other.
Schechter Poultry Corp. v. United
States. . . . Sometimes it is said that the relation must be
'direct' to bring that power into play. In many circumstances such
a description will be sufficiently precise to meet the needs of the
occasion. But a great principle of constitutional law is not
susceptible of comprehensive statement in an adjective. The
underlying thought is merely this, that 'the law is not indifferent
to considerations of degree.'
Schechter Poultry Corp. v. United
States, supra, concurring opinion, p.
295 U. S.
554. It cannot be indifferent to them without an
expansion of the commerce clause that would absorb or imperil the
reserved powers of the states. At times, as in the case cited, the
waves of causation will have radiated so far that their undulatory
motion, if discernible at all, will be too faint or obscure, too
broken by cross-currents, to be heeded by the law."
Thus, it would be a mistake to conclude that Congress' power to
regulate pursuant to the Commerce Clause is unlimited. Some
activities may be so private or local in nature that they simply
may not be in commerce. Nor is it sufficient that the person or
activity reached have
some nexus with interstate commerce.
Our cases have consistently held that the regulated activity must
have a
substantial effect on
Page 452 U. S. 311
interstate commerce.
E.g., NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. at
301 U. S. 37
(local activities may be regulated if they have a "close and
substantial relation to interstate commerce"). Moreover, simply
because Congress may conclude that a particular activity
substantially affects interstate commerce does not necessarily make
it so. Congress' findings must be supported by a "rational basis,"
and are reviewable by the courts.
Cf. Perez v. United
States, 402 U.S. at
402 U. S. 157
(STEWART, J., dissenting).** In short, unlike the reserved police
powers of the States, which are plenary unless challenged as
violating some specific provision of the Constitution, the
connection with interstate commerce is itself a jurisdictional
prerequisite for any substantive legislation by Congress under the
Commerce Clause.
In many ways, the Court's opinions in these cases are consistent
with that approach. In both the Virginia and Indiana cases, the
Court exhaustively analyzes Congress' articulated justifications
for the exercise of its power under the Commerce Clause and
concludes that Congress' detailed factual findings as to the effect
of surface mining on interstate commerce are sufficient to justify
the exercise of that power. Though there can be no doubt that
Congress, in regulating surface mining, has stretched its authority
to the "nth degree," our prior precedents compel me to agree with
the Court's conclusion. I therefore concur in the judgments of the
Court.
There is, however, a troublesome difference between what the
Court does and what it says. In both cases, the Court asserts that
regulation will be upheld if Congress had a rational basis for
finding that the regulated activity affects
Page 452 U. S. 312
interstate commerce.
Virginia Surface Mining, ante at
452 U. S. 276;
Indiana, post at
452 U. S.
323-325. The Court takes this statement of the proper
"test" from
Heart of Atlanta Motel, Inc. v. United States,
379 U. S. 241,
379 U. S. 258
(1964). In my view, the Court misstates the test. As noted above,
it has long been established that the commerce power does not reach
activity which merely "affects" interstate commerce. There must
instead be a showing that regulated activity has a
substantial
effect on that commerce.
See NLRB v. Jones & Laughlin
Steel Corp., supra; Shreveport Rate Cases, 234 U.
S. 342 (1914);
Wickard v. Filburn, 317 U.S. at
317 U. S. 125
(local activity may be reached by Congress if "it exerts a
substantial economic effect on interstate commerce");
North
American Co. v. SEC, 327 U. S. 686,
327 U. S. 705
(1946) (Congress may attack an evil which bears a "substantial
relationship to interstate commerce"). As recently as
Maryland
v. Wirtz, 392 U. S. 183,
392 U. S. 197,
n. 27 (1968), Justice Harlan stressed that
"[n]either here nor in
Wickard has the Court declared
that Congress may use a relatively trivial impact on commerce as an
excuse for broad general regulation of state or private
activities."
Even in
Heart of Atlanta Motel, Inc., in the paragraph
just prior to the passage relied on by the Court here, the Court
emphasized that Congress had the power to regulate local activities
"which might have a substantial and harmful effect upon that
commerce." 379 U.S. at
379 U. S. 258.
Though I believe the Court errs in its statement of the "test," it
may be that I read too much into the Court's choice of language. In
the Virginia case, for example, it does mention at one point that
Congress did have a "rational basis for concluding that surface
coal mining has substantial effects on interstate commerce."
Ante at
452 U. S.
280.
In sum, my difficulty with some of the recent Commerce Clause
jurisprudence is that the Court often seems to forget that
legislation enacted by Congress is subject to two different kinds
of challenge, while that enacted by the States is subject to only
one kind of challenge. Neither Congress nor
Page 452 U. S. 313
the States may act in a manner prohibited by any provision of
the Constitution. Congress must show that the activity it seeks to
regulate has a substantial effect on interstate commerce. It is my
uncertainty as to whether the Court intends to broaden, by some of
its language, this test that leads me to concur only in the
judgments.
* [This opinion applies also to No. 8231,
Hodel, Acting
Secretary of the Interior, et al. v. Indiana et al., post, p.
452 U. S.
314.]
** Of course, once the power of Congress to regulate is
established, the Court will rarely question the manner in which
that power is exercised.
E.g., United States Railroad
Retirement Bd. v. Fritz, 449 U. S. 166
(1980). Within its sphere of authority, the power of Congress is
broad, and should only rarely be subject to judicial invalidation.
The question here, in contrast, is whether Congress even has the
authority to act.