John J. Giblin
Thomas L. Clarke
Bowles Rice McDavid Graff & Love Charleston, West Virginia
Charleston, West Virginia Attorney for the Appellant
Attorney for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
1. Pursuant to 30 Code of Federal Regulation § 732.17(g), whenever changes
to laws or regulations that make up the approved state program regarding surface mining
reclamation are proposed by the state, no such change to the laws or regulations shall take
effect for purposes of a state program until approved as an amendment by the Office of
Surface Mining Reclamation and Enforcement. Syl. Pt. 3, Schultz v. Consolidation Coal
Co., 197 W.Va. 375, 475 S.E.2d 467 (1996), cert. denied, 519 U.S. 1091 (1997).
2. When a provision of the West Virginia Surface Coal Mining and
Reclamation Act, W.Va.Code, 22A-3-1 et seq., is inconsistent with federal requirements in
the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq., the state act must
be read in a way consistent with the federal act. Syl. Pt. 1, Canestraro v. Faerber, 179
W.Va. 793, 374 S.E.2d 319 (1988).
3. Once a state plan is approved under the federal Surface Mining Control and Reclamation Act, any subsequent amendments to such plan do not become effective until approved by the federal Office of Surface Mining, and may not be approved by the Office of Surface Mining if inconsistent with the Surface Mining Control and Reclamation Act.
4. Since the Office of Surface Mining has concluded that the amendment to
our state plan, codified as West Virginia Code § 22-3-3(u)(2)(ii) (1997) (Repl.Vol.1998), is
inconsistent with the Surface Mining Control and Reclamation Act, that proposed
amendment cannot be deemed as an amendment to the approved West Virginia surface
The West Virginia Division of Environmental Protection (DEP) appeals from
the October 1, 1999, order of the Circuit Court of Nicholas County, which reversed the West
Virginia Surface Mine Board's decision requiring Appellee DK Excavating, Inc. (DK) to
obtain a surface mining permit in connection with the removal of coal from a site where DK
intends to build an equipment shop. In making its ruling, the circuit court relied on a 1997
amendment to the definition of surface mining under the West Virginia Surface Mining
Control and Reclamation Act (WVSMCRA), West Virginia Code §§ 22-3-1 to -32 (1997)
(Repl.Vol.1998), which exempts from such definition coal extraction that is an incidental
part of certain types of land development. See W.Va. Code § 22-3-3(u)(2)(ii). Relying on
the federal and state supremacy clauses,See footnote 1
as well as principles of preemption, DEP argues that
the circuit court erred in ruling that the amended definition of surface mining is enforceable
notwithstanding express disapproval of that definition by the federal Office of Surface
Mining (OSM). Upon our review of all applicable law and regulations, we conclude that
the circuit court did commit error, and accordingly, reverse.
DEP argues that both federal and state law prevent it from enforcing the private
construction exemption. With the enactment of the federal Surface Mining Control and
Reclamation Act (SMCRA) in 1977,See footnote 4
Congress set forth a comprehensive scheme, the
purpose of which was to establish a nationwide program to protect society and the
environment from the adverse effects of surface coal mining operations. 30 U.S.C.
§ 1202(a) (1994); accord W.Va. Code § 22-3-2 (stating that [t]he Legislature finds that it
is essential to the economic and social well-being of the citizens of the state of West Virginia
to strike a careful balance between the protection of the environment and the economical
mining of coal). Under the statutory scheme of SMCRA, the states are given a choice as
to whether they wish to regulate surface mining activities that occur within their respective
boundaries.See footnote 5
See 30 U.S.C. § 1253. Any state that opted to assume regulatory control of its
surface mining activities was required by the provisions of SMCRA to submit a state
program to OSM for approval which demonstrates that such State has the capability of
carrying out the provisions of this chapter  and meeting its purposes . . . . Id. West
Virginia, like many other states, decided to regulate its own surface mining activities and
submitted a state plan which was approved by OSM.See footnote 6
Under federal law,See footnote 7
changes to that approved state plan must also be approved by OSM, as we recognized in
syllabus point three of Schultz v. Consolidation Coal Co., 197 W.Va. 375, 475 S.E.2d 467
(1996), cert. denied, 519 U.S. 1091 (1997):
Pursuant to 30 Code of Federal Regulation § 732.17(g), whenever changes to laws or regulations that make up the approved state program regarding surface mining reclamation are proposed by the state, no such change to the laws or regulations shall take effect for purposes of a state program until approved as an amendment by the Office of Surface Mining Reclamation and Enforcement.
Consistent with its obligation to gain federal approval of any amendments to a state surface mining plan, DEP submitted the amended statutory definition of surface mining with its inclusion of the private construction exemption to the OSM. In a ruling dated February 9, 1999, the OSM denied approval to the amended definition, stating:
The Director recognizes that requiring all privately
financed construction activities in West Virginia which also
remove coal to be permitted and regulated as surface coal
mining operations may, in some instances, present both a
hardship for the regulatory program and be a roadblock to
development within the State. Nevertheless, OSM is bound by
the constraints of SMCRA, both in its plain language and in
clear expressions of Congressional intent. Congress expressly
considered and rejected a blanket exemption from the definition
of surface mining operations for privately financed
construction. S.Rep.No. 95-337, 95th Cong., 1st Sess. 112
(1977). This West Virginia program amendment proposes
precisely the same blanket exemption which Congress explicitly
rejected. Therefore, the Director finds that the proposed
provision is less stringent than SMCRA at section 528 and
cannot be approved.
DK suggests that the provisions of West Virginia Code § 23-3-3(u)(2)(ii) are valid and can be enforced notwithstanding the express disapproval by OSM. Under its reading of SMCRA, the preemption provisions of the federal act are not automatic, but require an affirmative act on the part of the federal government. Focusing solely on the language of 30 U.S.C. § 1254, which provides for federal regulation of state surface mining activities where states either fail to initially submit a state program or fail to maintain their approved state programs, DK argues that the state program remains valid until a federal program is developed.See footnote 8 8 See 30 U.S.C. § 1254(a)(1)-(3), (g).
What DK overlooks in its analysis of this issue is the language of 30 U.S.C. § 1255, which provides that any State law or regulation [that] is inconsistent with the provisions of this chapter  is superseded by the provisions of SMCRA. The only limitation to this rule is for any State law or regulation . . . which provides for more stringent land use and environmental controls and regulations of surface coal mining and reclamation operation than do the provisions of this chapter. . . . 30 U.S.C. § 1255(b). Through the language of 30 U.S.C.§ 1255, Congress has made clear that from the date of SMCRA's enactment (August 3, 1977), any state regulation in effect or subsequently enacted would be preempted where state laws are inconsistent with the provisions of SMCRA, unless the state laws provide for regulation more stringent than that required by SMCRA. See 30 U.S.C. § 1255(b).
Given the OSM's express determination that the private construction
exemption is inconsistent with SMCRA, DEP maintains that it cannot view West Virginia
Code § 22-3-3(u)(2)(ii) as an enforceable state law. In support of its position, DEP looks to
the Supremacy Clause found in the United States Constitution and its mandate that the Laws
of the United States . . . shall be the supreme Law of the Land. U.S. Const. art. VI. The
West Virginia constitution specifically acknowledges our obligation to observe federal law
in stating similarly that federal law shall be the supreme law of the land. W.Va. Const. art.
I, § 1. DEP takes the position that its hands are tied by federal law, based on the clear
statutory pronouncement of SMCRA's preemptive effect with regard to state plans that are
inconsistent with its provisions. See 30 U.S.C. § 1255.
Citing the seminal decision of Hodel v. Virginia Surface Coal Mining and
Reclamation Association, Inc., 452 U.S. 264 (1981), DK maintains that the United States
Supreme Court's decision to uphold SMCRA against various constitutional challenges was
based on its recognition that Congress cannot make the states follow a particular course of
action. In rejecting the Commerce Clause challengeSee footnote 9
to SMCRA in Hodel, the Court clearly
acknowledged that there can be no suggestion that the Act [SMCRA] commandeers the
legislative processes of the States by directly compelling them to enact and enforce a federal
regulatory program. 452 U.S. at 288 (emphasis supplied). This is because an individual
state may choose to either implement its [own program] or else yield to a federally
administered regulatory program. Id. at 289. The linchpin, however, of the Supreme
Court's upholding of SMRCA in Hodel was its conclusion that the appelleesSee footnote 10
had failed to
demonstrate the first prong of the long-established test for Commerce Clause violations:
First, there must be a showing that the challenged statute regulates the 'States as States.'
452 U.S. at 287 (quoting National League of Cities v. Usery, 426 U.S. 833, 854 (1976)). In
renouncing the claim that SMCRA wrongfully coerces the states to act, the Supreme Court
stated: 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. 452 U.S. at 289. Continuing to dissect the appellees' contentions,
the Supreme Court reasoned that the only way SMCRA could be found to violate the
Commerce Clause was by assum[ing] that the Tenth Amendment limits congressional power
to preempt or displace state regulation of private activities affecting interstate commerce.
Id. at 289-90. After pronouncing that [t]his assumption is incorrect, the Supreme Court
A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law. 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.
Id. at 290; see also F.E.R.C. v. Mississippi, 456 U.S. 742, 766 (1982) (stating that it has always been the law that state legislative and judicial decisionmakers must give preclusive effect to federal enactments concerning nongovernmental activity, no matter what the strength of the competing local interests); Brown v. Red River Coal Co., 373 S.E.2d 609, 610 (Va. Ct. App. 1988) (stating that in substantive areas preempted by the federal government, such as coal surface mine reclamation, states may not enact laws that are less restrictive than or inconsistent with the federal law).
As DEP observes, this Court has on multiple occasions recognized that our
state mining laws have to be interpreted consistent with federal law. We acknowledged this
principle in syllabus point one of Canestraro v. Faerber, 179 W.Va. 793, 374 S.E.2d 319
(1988), in stating that
When a provision of the West Virginia Surface Coal Mining and Reclamation Act, W.Va.Code, 22A-3-1 et seq., is inconsistent with federal requirements in the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq., the state act must be read in a way consistent with the federal act.
See also Rose v. Oneida Coal Co., 195 W.Va. 726, 466 S.E.2d 794 (1995); Russell v. Island Creek Coal Co., 182 W.Va. 506, 389 S.E.2d 194 (1989). We have also previously determined that amendments to WVSMCRA cannot take effect without OSM approval. See Schultz, 197 W.Va. at 376, 475 S.E.2d at 468, syl. pt. 2; State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia DEP, 191 W.Va. 719, 724, 447 S.E.2d 920, 925 n.23 (1994).
It is beyond dispute that once a state planSee footnote 11
is approved under SMCRA, any
subsequent amendments to such plan do not become effective until approved by the OSM,
and may not be approved by OSM if inconsistent with SMCRA. Accordingly, since the
OSM has concluded that the amendment to our state plan, codified as West Virginia Code
§ 22-3-3(u)(2)(ii), is inconsistent with SCMRCA, that proposed amendment cannot be
deemed as an amendment to the approved West Virginia surface mining plan. We therefore
conclude that the lower court was in error in ruling that no permit was required based solely
upon the provisions of West Virginia Code § 23-3-3(u)(2)(ii).See footnote 12
Accordingly, the decision
of the Circuit Court of Nicholas County is hereby reversed.
[w]henever changes to laws or regulations that make up the
approved State program are proposed by the State, the State shall
immediately submit the proposed changes to the Director [OSM] as an
amendment. No such change to laws or regulations shall take effect
for purposes of a State program until approved as an amendment.
30 C.F.R. § 732.17(g) (emphasis supplied).