National Wildlife Federation v. Donald P. Hodel, Secretary of the Interior

Opinion for the Court filed by Chief Judge WALD, Circuit Judge RUTH BADER GINSBURG, and Circuit Judge SILBERMAN.

TABLE OF CONTENTS

Page

I. Introduction. 701

II. Standing. 703

A. The History of the Standing Issue in this Case. 703

B. A Brief Overview of Standing Doctrine. 703

C. NWF’s Standing on Particular Issues. 706

1. Issues where the Secretary has Eliminated Minimum National Environmental Standards (Four Issues). 706

2. Issues where the Challenge to Standing Focuses on the Adequacy of Affidavits (Fourteen Issues).709

a. Federal Lands.711

b. Off-Site Facilities.712

c. Host Soils.713

d. Prime Farmland Lakes. 713

e. Support Facilities on Prime Farmland. 714

f. Variances from Original Contours. 714

g. Submerged Highwalls._ 716

h. Actual Grazing on Land._ 715

D. Conclusion.716

III. Merits.716

A. Prime Farmland and Pastureland Issues.716

1. Revegetation Success Standards for Prime Farmland_716

2. Revegetation Success Standards for Grazing and Pastureland_718

3. Exemptions from Performance Standards for Prime Farmlands_719

a. Construction of Water Impoundments on Prime Farmland_719

b. Exemption for Prime Farmland Affected by Coal Preparation Plants, Support Facilities, and Roads.722

B. Bonding to Assure Reclamation of Land Affected by Mine Operations_723

1. Incremental and Phased Bonding.724

2. Bonding for Damage Caused by Subsidence of Land Overlying Underground Mines.726

C. Regulatory Guidance_729

1. Alluvial Valley Floors.729

2. Mine Waste. 731

3. Backfilling and Grading.784

a. Contemporaneous Reclamation.736

b. Thin and Thick Overburden. 786

C. Terraces. 737

*701 Pafle

D. Residual Issues.- 739

1. Damage Caused by Subsidence of Land Overlying Underground Mines_ 739

2. Reshaping Cut and Fill Slopes (Roads and Underground Mines)_ 741

3. Jurisdiction Over Processing and Support Facilities. 742

4. Alluvial Valley Floors Performance Standards. 746

5. Substantial Legal and Financial Commitment. 747

E. Residual Issues II. 748

1. Continually-Created Valid Existing Rights. 748

2. Values Incompatible with Surface Mining. 751

3. Replacement of Damaged Water Supplies by Operators of Underground Mines. 763

a. The Unplain Meaning of Section 717(b). 763

b. The “Puzzling Contradiction” of Section 508(a)(13)’s Permitting Requirements . 754

4. Exemption from Water Replacement Requirements for Holders of Senior Water Rights.756

5. Cumulative Hydrologic Assessment — What is “Anticipated Mining”?_757

6. Elimination of Underwater Highwalls. 759

7. Temporary (but Long-Term) Storage of Top Soil.760

8. Authority to Grant Variance from AOC Requirements.76I

9. Jurisdiction Over Non-Erosional Aspects of Air Quality.764

10. Use of Proximity as a Factor in Determining Jurisdiction Over Support Facilities. 765

11. Delegability of Secretary’s Authority Over Federal Land Mining Permits 766

IV. Conclusion. 768

I. Introduction

The Surface Mining Control and Reclamation Act of 1977, Pub.L. No. 95-87, 91 Stat. 445 (codified as amended at 30 U.S.C. §§ 1201 et seq.) (“the Surface Mining Act,” “the Act,” or “SMCRA”), emerged from prolonged deliberations that reach back to hearings and the introduction of legislation in the 90th Congress. 1 The Act, as finally passed by the 95th Congress, established “a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” SMCRA § 102(a). Environmental impacts from surface coal mining (and the surface impacts of underground coal mining operations) are regulated through two basic mechanisms: a permit system (§§ 506-514) and a series of performance standards (§§ 515-516). The Act’s permit provisions require that before engaging in a surface coal mining operation, a mine operator must submit detailed information concerning the environmental consequences of the proposed mining operations and include a plan for reclaming affected lands as required by the Act. Once the mining operation has begun, the mine operator must adhere to the statutory environmental performance standards, many of which relate to the obligation to restore and reclaim affected lands. See SMCRA §§ 515-516.

The Act can be enforced at either the state or federal level. After an interim period of direct federal regulation, states are authorized by the Act to assume a major regulatory role. A state wishing to take on that responsibility must submit a proposed regulatory program to the Secretary of the Interior (“Secretary”), who determines whether the state has the capability to implement SMCRA consistent with federal standards. With the Secretary’s approval, the state then assumes primary responsibility for SMCRA enforcement and rulemaking.

The Act has been a fertile source of litigation since its inception. In 1977, nu *702 merous coal industry and environmental organizations filed suit in the District Court for the District of Columbia, challenging the interim program regulations that went into effect shortly after the Act’s passage and continued until the permanent regulatory regime went into effect in 1979 and 1980. The district court consolidated those challenges and ruled on them in two separate opinions. In re Surface Mining Regulation Litigation, 452 F.Supp. 327 (D.D.C.1978); In re Surface Mining Regulation Litigation, 456 F.Supp. 1301 (D.D.C.1978). This court subsequently affirmed the district court’s judgment in part, and reversed in part. In re Surface Mining Regulation Litigation, 627 F.2d 1346 (D.C.Cir.1980) (“SMRL”).

Buffeted by politics and the courts, the interpretation of SMCRA has been an epic in itself. In 1979 Secretary Andrus promulgated permanent program surface mining regulations which prompted a myriad of legal challenges. In a series of three opinions, the district court decided over 100 issues raised by the various parties. In re Permanent Surface Mining Regulation Litigation I, 13 E.R.C. 1586 (D.D.C.1979) (preliminary injunction); In re Permanent Surface Mining Regulation Litigation I, 14 E.R.C. 1083 (D.D.C.1979) (“PSMRL I (Round I)”); In re Permanent Surface Mining Regulation Litigation I, 19 E.R.C. 1477 (D.D.C.1980) (“PSMRL I (Round II)"). One aspect of those decisions, a challenge by the coal industry to the Secretary’s rulemaking authority to require applicants for a permit to submit additional information not specifically enumerated in the Act, was eventually rejected on appeal by this court. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C.Cir.) (en banc), cert. denied, 454 U.S. 822, 102 S.Ct. 106, 70 L.Ed.2d 93 (1981) (‘PSMRL I”). Many other issues on appeal from the district court were overtaken by events. The presidential election of 1980 resulted in a change in administration mining policy. In 1981, while appeals relating to the 1979 regulations were pending, the new Secretary of the Interior, James Watt, announced his intention to repromulgate the permanent SMCRA program regulations. The entire case was accordingly remanded to the Secretary.

In his reconsideration of the 1979 regulations, Secretary Watt specifically asked commentators to focus on ways to increase the flexibility of federal supervision of state regulatory programs; and more generally, he requested suggestions on how to revise “excessive, burdensome, or counterproductive” regulations. States, citizen groups, and representatives of the coal industry responded with a range of proposals: increase the flexibility of regulations to permit case-by-case implementation, take into account the differences between coal producing regions, eliminate unreasonable difficulties and expense in complying with the regulations, and improve the enforcement program. In 1983, the Secretary announced revised regulations that, inter alia, granted both state regulators and coal mine operators greater discretion in complying with the general requirements of the statute. The Secretary also retained many of the 1979 regulations.

Many of the new “flexible” regulations were challenged by the National Wildlife Federation and other environmental groups (collectively referred to as “NWF”). 2 Several groups representing the coal industry (“Industry”) 3 mainly objected to regulations that had remained unchanged from the 1979 program. In four separate opinions, or “Rounds,” the district court addressed the 113 issues presented by these various challenges. 4 Over 30 of those issues are now before us on appeal.

*703 II. Standing

At the outset, we confront the challenges posed by Industry to the standing of the National Wildlife Federation, appellants here. For reasons to follow, we conclude that district court Judge Flannery correctly found that NWF has standing to challenge each of the regulations in question. We proceed to discuss the merits of each challenge.

A. The History of the Standing Issue in This Case

Standing has emerged as a prime issue in this appeal. Industry raised standing objections in the district court, but Judge Flannery initially made no fact findings on the subject. On appeal, however, Industry interposed a broad challenge to NWF’s standing, reaching each of the 21 regulations contested by the environmental organizations. Specifically, Industry argued that NWF had failed to allege a constitutionally adequate injury with respect to each regulation. In the case of several regulations, Industry maintained that NWF had failed to demonstrate a sufficiently strong chain of causation between the challenged regulation and the alleged harm. 5

After oral argument, this court remanded the record to Judge Flannery to make additional fact findings on standing. We instructed the district court to receive affidavits “demonstrating specific injury” to members of the plaintiff environmental organizations. NWF thereupon filed with the district court 70 affidavits, amounting to over 1,600 pages.

On August 10, 1987, Judge Flannery issued a memorandum opinion concluding that NWF’s affidavits had alleged sufficiently specific injuries with regard to each regulation challenged by NWF to satisfy Article III of the Constitution. See In re Permanent Surface Mining Regulation Litigation, No. 79-1144, mem. op. (D.D.C. Aug. 10, 1987) (hereinafter “Findings on Standing”).

In light of the vast expanse of issues before us in this appeal, we pause first to sort out which issues are, and are not, subject to standing challenges. NWF has not contested, nor could it seriously contest, the standing of Industry to challenge those regulations that Industry has assailed. Thus, as to issues on which Industry is pitted against the Secretary, no standing challenge is before this court.

Additionally, in the aftermath of Judge Flannery’s memorandum opinion on standing, Industry concedes that NWF has standing to challenge three of the 21 regulations NWF has contested. These regulations involve: (1) the replacement of the water supply of property owners whose supply has been damaged by underground coal mining; (2) the measures coal operators must take to control “fugitive dust”; and (3) the requirement that regulatory authorities determine the probable cumulative impact of all anticipated mining prior to its inception. See Brief for Industry at 25, 27, 43 (conceding standing on these issues). 6 After studying NWF’s affidavits and reviewing Judge Flannery’s treatment, see Findings on Standing, at 16-17, 19-20, 33-34, with regard to these three issues, we conclude along with Judge Flannery that NWF has satisfied the standing requirements of Article III of the Constitution. We are thus left with challenges to NWF’s standing to contest the 18 remaining surface-mining regulations.

B. A Brief Overview of Standing Doctrine

Standing jurisprudence is a highly case-specific endeavor, turning on the precise *704 allegations of the parties seeking relief. Compare Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (denying standing to an environmental organization challenging development of a ski resort in a national forest because it failed to identify “specific injury” to members) with United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (finding pleadings alleged facts which, if true, would establish standing by environmental group to challenge Interstate Commerce Commission’s allowance of rail freight increase which identified members whose recreational and aesthetic interests would be allegedly injured because rate increase would lead to heightened use of raw, instead of recycled, scrap metal). Thus, in this case, rather than passing a composite judgment on the standing of NWF with regard to the mass of regulations before us, we evaluate the nature of NWF's objection to each challenged regulation in order to determine whether NWF can contest these measures in court.

We begin our standing inquiry by recalling some principles of special relevance to this case. Standing involves both limitations imposed by the “case or controversy” requirement of Article III of the Constitution and “prudential limits on its exercise.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1974). 7 The Supreme Court has construed the constitutional elements of the standing requirement as embracing three separate, yet necessarily intertwined components: The party invoking the court’s authority must demonstrate (1) “some actual or threatened injury” that (2) “fairly can be traced to the challenged action” and (3) “is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979), and Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925-26, 48 L.Ed.2d 450 (1976), respectively). See also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

The first of these elements, that a party “has been or will in fact be perceptibly harmed by the challenged agency action,” see United States v. SCRAP, 412 U.S. at 688, 93 S.Ct. at 2416, is the core of standing. See Daughtrey v. Carter, 584 F.2d 1050, 1056 (D.C.Cir.1978) (characterizing injury requirement as “first and foremost element of standing”). The requisite injury cannot be to merely “abstract” interests, see Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); Simon, 426 U.S. at 40, 96 S.Ct. at 1925; Sierra Club, 405 U.S. at 739-40, 92 S.Ct. at 1368-69. Nevertheless, the “distinct and palpable injury,” see Warth v. Seldin, 442 U.S. at 501, 95 S.Ct. at 2206, suffered by a party need not be tangible or great: an “identifiable trifle” will do. See United States v. SCRAP, 412 U.S. at 689 n. 14, 93 S.Ct. at 2417 n. 14.

Injury to aesthetic or recreational interests, as well as to more traditional economic interests, will support a claim of standing. See, e.g., Sierra Club, 405 U.S. at 734, 92 S.Ct. at 1366 (“Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”); Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 576-78 (D.C.Cir.1980) (“concerned citizens” professing interest in the preservation of the environment held, un *705 der statutory provision incorporating the Sierra Club test, to have standing to challenge permits issued to sewage treatment plants); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 997-99 (D.C.Cir.1979), cer t. denied sub. nom. Committee for Auto Responsibility v. Freeman, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980) (environmental organization has standing to challenge “[h]arm to health and conservational interests” stemming from failure of General Services Administration to prepare an environmental impact statement prior to leasing city land for use as a parking lot). Also significant here is the time-honored principle that harm can be actual or threatened, see Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758, thus allowing those who plausibly anticipate future injury to bring suit. See Wilderness Soc’y v. Griles, 824 F.2d 4, 10-12 (D.C.Cir.1987) (discussing standards for determining when an allegation of threatened injury suffices for standing); see also National Wildlife Fed’n v. Burford, 835 F.2d 305, 313-14 (D.C.Cir.1987) (same).

The second prong of the standing inquiry is causation: the injury alleged must be “fairly traceable” to the action under attack. The Supreme Court’s decisions on this point show that mere indirectness of causation is no barrier to standing, and thus, an injury worked on one party by another through a third party intermediary may suffice. See, e.g., Meese v. Keene, — U.S. —, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) (would-be distributor has standing to challenge Justice Department’s characterization of film as “political propaganda” under foreign agents’ registration act because label could hurt his chances of reelection to state senate); United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405. As we stated in Autolog Corp. v. Regan, 731 F.2d 25 (D.C.Cir.1984):

It is well settled that a plaintiff has standing to challenge conduct that indirectly results in injury_ ‘We are concerned here not with the length of the chain of causation, but on [sic] the plausibility of each of the links that comprise the chain.’

731 F.2d at 31 (citations omitted) (quoting Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 717 (D.C.Cir.1977)). Other prominent cases in which the “fairly traceable” requirement was found satisfied despite a relatively attenuated chain of causation are Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), in which the Supreme Court held that an environmental group had standing to challenge Price-Anderson Act’s limitation on utility liability in event of nuclear accident, and Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986), in which the Court held that a whale-watching group had standing to challenge the failure of the Secretary of Commerce to cite Japan for violations of international limitations on harvesting of whales.

The final prong of current constitutional standing analysis is redressability. Re-dressability and causation analyses often replicate one another, particularly in cases where, as here, the relief requested is merely the cessation of illegal conduct. See Allen v. Wright, 468 U.S. at 753 n. 19, 104 S.Ct. at 3325-26 n. 19; see also Haitian Refugee Center v. Gracey, 809 F.2d 794, 801 (D.C.Cir.1987) (describing “traceability” and “redressability” requirements as “closely related”); cf. California Ass’n of the Physically Handicapped v. Federal Communications Comm’n, 778 F.2d 823, 825 n. 7 (D.C.Cir.1985) (explaining the distinction between the two requirements). We note, however, that a party seeking judicial relief need not show to a certainty that a favorable decision will redress his injury. A mere likelihood will do. Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81, 98 S.Ct. 2733, 2743, 57 L.Ed.2d 750 (1978) (Powell, J.); International Ladies Garment Workers’ Union v. Donovan, 722 F.2d 795, 811 n. 27 (D.C.Cir.1983), cert. denied, sub. nom. Breen v. International Ladies Garment Workers’ Union, 469 U.S. 820, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984). As we stated in Community Nutrition *706 Inst. v. Block, 698 F.2d 1239, 1249 (D.C.Cir.1983), rev’d on other grounds, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), a plaintiff need not “negate every ‘speculative and hypothetical possibility) ... in order to demonstrate the likely effectiveness of judicial relief.’ ”

With these guiding principles in mind, we turn to Industry’s 18 remaining standing challenges to NWF’s various claims. For the sake of coherence we have classified those challenges into two broad groups, each of which raises analytically similar issues.

C. NWF’s Standing on Particular Issues

1. Issues Where the Secretary Has Eliminated Minimum National Environmental Standards (Four Issues)

The first cluster of standing challenges includes four instances in which NWF has challenged Secretary Watt’s elimination of minimum national standards governing various aspects of surface mining. These regulations involve (1) the contemporaneous reclamation of mined land; (2) the design of earth “terraces” on restored land; (3) the exemption from the “approximate original contour” requirement of lands featuring unusually thick or thin overburden; and (4) the information required from those seeking permits for activities that could unsettle alluvial valley floors. 8 In each of these areas, the Secretary has eliminated regulations previously prescribed as minimum standards for implementing the broadly worded provisions of the Act. These regulatory floors were to guide federal enforcement or, in the event that states accepted the Act’s invitation to assume regulatory authority, state enforcement.

The first NWF issue in this cluster stems from the requirement imposed by § 515(b)(16) that mine operators reclaim land “as contemporaneously as practicable [to the] mining operations.” In 1979, then-Secretary Andrus promulgated specific “time and distance” standards for such backfilling and grading, see 30 C.F.R. § 816.101, but four years later, Secretary Watt repealed those standards, concluding that “ ‘contemporaneous reclamation’ is a relative term which must be interpreted by each State on the basis of the mining conditions in its territory.” 48 Fed.Reg. 23357-58 (1983).

The second issue relates to the requirement of § 515(b)(3) that land be restored to its “approximate original contour.” The regulations adopted in 1979 attached numerical benchmarks to this broad requirement, requiring terraces to be built with bench widths less than 20 feet and slopes between benches at less than a 50 degree angle. Secretary Watt’s revisions, however, abandoned maximum bench widths and outslope angles, leaving to regulatory authorities the decision on a case-by-case basis whether to approve given terrace characteristics.

The third issue involves the exemption in § 515(b)(3) from the requirement that lands be returned to their approximate original contour. The 1979 regulations provided numerical specifications for grants of a variance from the approximate original contour requirement; but in 1983, Secretary Watt eliminated the numerical standards, allowing variances whenever the mine operator asserts that spoil is either “insufficient” or “more than sufficient” to restore land to its approximate original contour. 30 C.F.R. § 816.104-105 (1986).

The fourth issue involves the information required of those seeking permits for operations that might affect alluvial valley floors. Section 515(b)(10)(F) requires surface coal mining operations to “preserve throughout the mining and reclamation process the essentially hydrologic functions of alluvial valley floors in the arid and semi-arid areas of the country.” The origi *707 nal regulations contained precise specifications on the information needed in a permit application when a mine operator’s proposed operations might affect an alluvial valley floor, but in 1983, Secretary Watt withdrew the enumeration of this “technical data, information and analysis.” Instead, he required simply that “generally ... sufficient information be submitted to enable the regulatory authority to make the necessary determinations.” 48 Fed. Reg. 29814 (1983).

With regard to each of these issues, NWF alleges that it suffers at the very least a threat of injury from the Secretary’s deletion of the regulatory mínimums. In response, Industry suggests that NWF has merely alleged a statutory violation without proffering a viable claim of specific injury. See Motion to Remand Certain Issues With Direction to Dismiss for Want of Jurisdiction and Ripeness (hereinafter “Brief for Industry”), at 12-15. Insofar as the first prong of the standing requirement, injury in fact, is concerned, we, however, are satisfied that NWF’s affidavits now provide sufficient allegations of personalized injury to satisfy the Sierra Club and SCRAP standards for “injury in fact” in environmental cases. These affidavits provide sufficient details describing threatened injuries. Typically, NWF’s affiants live in communities where surface mining operations have occurred. In addition to alleging past environmental degradation, these affiants describe in substantial detail the injuries they fear from ongoing and future mining operations. Those affiants addressing the contemporaneous reclamation, terracing and thick and thin overburden requirements allege that the new regulations permit greater deviance from the goal of approximating the original contour of the mined land, a major environmental goal of the Act. Those affiants addressing the deletion of specific information requirements regarding alluvial valley floors in permit applications allege that this policy will create an increased danger of degrading water supplies in the West.

Industry suggests that these affidavits are inadequate for failure to track the sometimes hypertechnical language of the statute, see, e.g., Brief for Industry at 23 (“Neither [affiant] so much as mentions ... the thick overburden exemption”), or for failure to describe with precision the harms they fear. See, e.g., id. at 21 (“[neither points to any specific mine or terrace, and each offers only a general and irrelevant observation that their aesthetic enjoyment would be diminished_”). We disagree. Unyielding insistence on parroting the arcane technicalities of the law or regulations, however, would turn the standing requirement into a barrier impeding all but mining engineers from challenging this legislation. NWF’s allegations of injury in these affidavits, far from being “an ingenious academic exercise in the conceivable,” see SCRAP, 412 U.S. at 688, 93 S.Ct. at 2416, are the allegations of real people personally concerned about constitutionally-sufficient environmental, recreational, or aesthetic injuries. In view of the specificity of the numerous allegations affiants make concerning threatened deviations from reclaiming land to its original contour, those allegations are reasonably read to address the technical regulations which implement that important requirement. We therefore wholly concur in Judge Flan-nery’s evaluation of the adequacy of these allegations to establish injury in fact with respect to each of these regulations. See Findings on Standing at 6-12, 25-26.

The more difficult issue regarding these four regulations is whether NWF has satisfactorily established that the injuries of which it complains are “fairly traceable” to the challenged action. Industry contends in each instance that the injuries cited in NWF’s affidavits are merely speculative. Specifically, it makes three distinct arguments. First, Industry argues that because individual states may choose to adhere to the initial regulatory minimurns set forth in 1979, any fear of laxer standards is premature. Second, it argues that the new, more nebulous regulations could still be interpreted so as to conform to,, or even exceed, the previous minimum standards. Third, it maintains that threatened injury “can arise only after a government agency m