Like the Clean Water Act, SMCRA utilizes a “cooperative federalism approach” in regulating surface coal mining. See 30 U.S.C. §§ 1201(f), 1253. When SMCRA was enacted in 1977, five years after the Clean Water Act, Congress reinforced the Clean Water Act’s “overarching policy” of granting primacy to the States, and it 13   Case 1:10-cv-01220-RBW Document 64 Filed 05/23/11 Page 18 of 24 did so explicitly for surface mining.

L. No. 94-377, 90 Stat. 1083; Surface Mining Control and Reclamation of 1977, 30 U.S.C. § 1201 et seq.; and Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1701 et seq.” ECF Doc. 1 at 3, ¶ 3.

SMCRA regulates the overall construction, operation and reclamation of surface coal mines. 30 U.S.C. §§ 1201 et seq. SMCRA provides a comprehensive mechanism for controlling the environmental impacts of surface coal mining, including the ultimate return of excess rock and dirt to the mined area and adjacent hollows.

n-exhaustive list of federal laws calling for this balancing include: Clean Air Act, 42 U.S.C. § 7401(c) (intent “to encourage or otherwise promote reasonable . . . governmental actions . . . for pollution prevention”); Mining and Minerals Policy Act, 30 U.S.C. § 21a (intent to encourage “eco- nomic development of domestic mineral resources” including oil and gas balanced with “environ- mental needs”); Coastal Zone Management Act, 16 U.S.C. § 1451 (balancing “[t]he national objec- tive of attaining a greater degree of energy self-sufficiency” with “[i]mportant ecological . . . values in the coastal zone”); Federal Lands Policy Management Act, 43 U.S.C. § 1701(a) (requiring “the public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals” including oil and gas while “protect[ing] the quality of . . . ecological, environmental, air and atmospheric, water resource, and archeological values”); Surface Mining Control and Reclama- tion Act, 30 U.S.C. § 1201 (finding that coal mining is “essential to the national interest” but must be balanced by “effort[s] . . . to prevent or mitigate adverse environmental effects”); National Environ- mental Policy Act, 42 U.S.C. §§ 4321–70 (requiring disclosure and evaluation of known or foreseea- ble environmental impacts of federal action, including permitting of private conduct). Case 3:17-cv-06011-WHA Document 92 Filed 12/19/17 Page 29 of 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANTS’ JOINT OPPOSITION TO MOTION TO REMAND – NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA Gibson, Dunn & Crutcher LLP federal regulatory regimes require maximum economic recovery, or minimization of waste, of regu- lated energy resources.

n-exhaustive list of federal laws calling for this balancing include: Clean Air Act, 42 U.S.C. § 7401(c) (intent “to encourage or otherwise promote reasonable . . . governmental actions . . . for pollution prevention”); Mining and Minerals Policy Act, 30 U.S.C. § 21a (intent to encourage “eco- nomic development of domestic mineral resources” including oil and gas balanced with “environ- mental needs”); Coastal Zone Management Act, 16 U.S.C. § 1451 (balancing “[t]he national objec- tive of attaining a greater degree of energy self-sufficiency” with “[i]mportant ecological . . . values in the coastal zone”); Federal Lands Policy Management Act, 43 U.S.C. § 1701(a) (requiring “the public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals” including oil and gas while “protect[ing] the quality of . . . ecological, environmental, air and atmospheric, water resource, and archeological values”); Surface Mining Control and Reclama- tion Act, 30 U.S.C. § 1201 (finding that coal mining is “essential to the national interest” but must be balanced by “effort[s] . . . to prevent or mitigate adverse environmental effects”); National Environ- mental Policy Act, 42 U.S.C. §§ 4321–70 (requiring disclosure and evaluation of known or foreseea- ble environmental impacts of federal action, including permitting of private conduct). Case 3:17-cv-06011-WHA Document 89 Filed 12/18/17 Page 29 of 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANTS’ JOINT OPPOSITION TO MOTION TO REMAND – NOS. 17-CV-6011-WHA AND 17-CV-6012-WHA Gibson, Dunn & Crutcher LLP federal regulatory regimes require maximum economic recovery, or minimization of waste, of regu- lated energy resources.

The BLM leases federal coal under authority of the Mineral Leasing Act of 1920 (“MLA”), 30 U.S.C. § 181 et seq., and in accordance with NEPA requirements.5 Following lease acquisition, an applicant must obtain a permit under the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”). 30 U.S.C. § 1201 et seq.6 Finally, on recommendation of OSMRE, the Assistant Secretary of Land and Minerals Management must approve, disapprove, or modify a mining plan, in accordance with the MLA. 30 U.S.C. § 207(c); see also 30 C.F.R. Part 746.

11(h)(1) (emphasis added). Moreover, the discharges from these non-fill areas are regulated by West Virginia under both the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201, et seq. (“SMCRA”) and § 402. ML Br.

All parties appear to agree that, through SMCRA, Congress created minimum environmental protection standards for the entire nation, pre-empted state laws and regulations that were less stringent than those federal standards, and created a federal agency – the Office of Surface Mining Reclamation and Enforcement, (“OSMRE”) – to assist in the enforcement of the national standards.3 The parties also agree that Congress determined that “the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States” because of the “diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations.” 30 U.S.C. § 1201(f) (2012). Additionally, the parties agree that a state, such as Virginia, can become the primary enforcer, or “achieve primacy,” after two things occur.

This action challenges a decision of the Secretary of the Interior (the “Secretary”) that strikes at the heart of citizens’ statutory right to participate in oversight of surface coal mining and reclamation operations under the Surface Mining Control and Reclamation Act (“SMCRA”). 30 U.S.C §§ 1201-1328. If upheld, the Secretary’s decision would permit regulatory authorities (1) to systematically deny citizens their legal right to be present at mine site inspections where they have provided regulators with a reason to believe violations are occurring, (2) to rely on data collected in violation of the law, and (3) to rule against citizens even where all record evidence demonstrates unlawful permit violations.

L. No. 94-377, 90 Stat. 1085 (1976), and the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328. 1 Case 1:14-cv-01993-RBW Document 28 Filed 02/25/15 Page 3 of 11 has been prepared.