Court of the United States
452 U.S. 264
Nos. 79-1538, 79-1596.
Argued Feb. 23, 1981.
Decided June 15, 1981.
The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the
convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
A pre-enforcement 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
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.
In the context of a facial challenge, the Act is constitutional.
(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
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
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,
96 S.Ct. 2465, 49 L.Ed.2d 245.
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.
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.
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
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.
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 statutory
procedures for the assessment and collection of fines.
483 F.Supp. 425, affirmed in part, reversed in part, and remanded.
Buscemi, Washington, D. C., for appellant in 78-1538 and for
appellees in 79-1596.
Coleman, Richmond, Va., for appellees in 79-1538 and for appellants
Justice MARSHALL, delivered the
opinion of the Court.
cases arise out of a pre-enforcement 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, [FN1] or transgressed affirmative limitations
on the exercise of that power contained in the Fifth and Tenth
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.
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.
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
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.
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
Included among those selected standards are requirements
restoration of land after mining to its prior condition;
(b) restoration of land to its approximate original
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).
[FN2] The interim 270 regulations
were published on December 13, 1977, see 42 Fed.Reg. 62639, [FN3]
and they are currently in effect in most States, including
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.
FN3. 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.
FN4. 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
District Court sustained the validity of those provisions,
456 F.Supp., at 1319-1321, and the attack was not renewed
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
271 assist the Secretary in enforcing
the interim standards. [FN5]
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.
FN5. Congress encouraged
such assistance by providing for financial reimbursements
to States that activity assist the federal enforcement effort
during the interim phase.
See 30 U.S.C. § 1252(e)(4) (1976 ed., Supp. III).
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
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.
§ 503, any State wishing to assume permanent regulatory authority
over the surface coal mining operations on "non‑Federal
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),  30
U.S.C. §§ 1253(b), (c) (1976 ed., Supp. III). [FN7]
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
§ 506(a), 30 U.S.C. § 1256(a) (1976 ed., Supp. III).
FN6. 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."
FN7. 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 March 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 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
program was among those approved in part and disapproved in
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.
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 individuals 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. [FN8] Plaintiffs' challenge
was primarily directed at Title V's performance standards.
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,
[FN10] the Tenth Amendment, [FN11] and
the Just Compensation Clause of the Fifth Amendment. [FN12]
FN8. The Virginia
Citizens for Better Reclamation, Inc., and the town of St.
Charles, Va., intervened as defendants in support of the Secretary.
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
FN10. 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."
FN11. 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."
FN12. The Compensation
Clause prohibits the taking of private property "for
public use, without just compensation."
District Court held a 13-day trial on plaintiffs' request
for a permanent injunction.
The court subsequently 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
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, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (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. [FN13]
FN13. 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. 79-1538, pp. 1a-16a
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." 100 S.Ct. 1306, 63 L.Ed.2d 755
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. [FN14] Because
of the importance of the issues raised, we noted probable
jurisdiction of both appeals, [FN15] 449 U.S. 
817, 101 S.Ct. 67, 66 L.Ed.2d
19 (1980), and consolidated the two cases. [FN16]
For convenience, we shall usually refer to 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.
FN15. 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.
FN16. We also agree
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.
452 U.S. 314, 101 S.Ct. 2376, 69 L.Ed.2d 40.
At least three other District Courts have considered
constitutional challenges to provisions of the Surface Mining
Concerned Citizens of Appalachia, Inc. v. Andrus, 494 F.Supp.
679 (ED Tenn.1980), appeal pending, No. 80-1488 (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.
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, [FN17] and
argue that Congress may regulate
land use only insofar as the Property Clause
[FN18] grants it control over federal lands.
cite cases such as Village of Belle Terre v. Boraas, 416 U.S.
1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974);
Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed.
27 (1954); Euclid
v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.
FN18. 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.
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, 258, 85 S.Ct. 348, 358, 13 L.Ed.2d 258 (1964);
Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct.
377, 383, 13 L.Ed.2d 290 (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 262, 85 S.Ct., at 360.
See United States v. Darby, 312 U.S. 100, 121, 61 S.Ct.
451, 460, 85 L.Ed. 609 (1941); Katzenbach v. McClung, 379
U.S., at 304, 85 S.Ct., at 383.
The judicial task is at an end once the court determines
that Congress acted rationally in adopting a particular regulatory
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 840,
96 S.Ct., at 2468; Cleveland
v. United States, 329 U.S. 14, 19, 67 S.Ct. 13, 15, 91 L.Ed.
12 (1946); NLRB
v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct.
615, 624, 81 L.Ed. 893 (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, 196, 6 L.Ed. 23 (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
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, 150, 91 S.Ct.
1357, 1359, 28 L.Ed.2d 686 (1971). As we explained in Fry
v. United States, 421 U.S. 542, 547, 95 S.Ct. 1792, 1795,
44 L.Ed.2d 363 (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
See National League of Cities v. Usery, 426 U.S., at
840, 96 S.Ct., at 2468; Heart of Atlanta Motel, Inc. v.
United States, supra, 379 U.S., at 255, 85 S.Ct., at 356;
Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct.
82, 90, 87 L.Ed. 122 (1942);
United States v. Wrightwood Dairy Co., 315 U.S. 110,
119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942);
United States v. Darby, supra, 312 U.S., at 120-121,
61 S.Ct., at 460.
Thus, when Congress has determined
that an activity affects interstate commerce, the courts need
inquire only whether the finding is rational.
Here, 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
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."
record provides ample support for these statutory findings.
The Surface Mining Act became law
after six years of the most thorough legislative consideration.
of both Houses of Congress held extended hearings during which
vast amounts of testimony and
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
Hearings on proposed legislation regulating surface coal mining
began in 1968. Surface
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);
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.
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
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 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 was 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),
U.S.Code Cong. & Admin.News 1977, p. 593.
See also Note, 81 W.Va.L.Rev. 775 (1979).
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
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
siltation and sedimentation of river systems....' "
H.R.Rep.No.95-218, p. 58 (1977), U.S.Code Cong. &
Admin.News 1977, p. 596, quoting H.R.Rep.No.94-1445, p. 19
in discussing how surface coal mining affects water resources
and in turn interstate commerce, the House Committee explained:
widespread damages ... are environmental in nature.
Water users and developers incur significant economic
and financial losses as well.
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, U.S.Code Cong. & Admin.News
1977, p. 597.
id., at 96-122.
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.
do not, in general, dispute the validity of the congressional
findings. [FN20] Rather,
appellees' contention is that
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.
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, 541, n. 10,
96 S.Ct. 2285, 2292, n. 10, 49 L.Ed.2d 34 (1976);
United States v. Carolene Products Co., 304 U.S. 144,
152-154, 58 S.Ct. 778, 783-784, 82 L.Ed. 1234 (1938).
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
119, 62 S.Ct., at 526.
See Fry v. United States, 421 U.S., at 547, 95 S.Ct.,
at 1795; NLRB
v. Jones & Laughlin Steel Corp., 301 U.S., at 37, 57 S.Ct.,
at 624. 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, 61
S.Ct. 451, 85 L.Ed. 609 (1941);
Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed.
122 (1942); NLRB
v. Jones & Laughlin Steel Corp., supra;
Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116,
86 L.Ed. 1638 (1942). Cf. Katzenbach v. McClung,
379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (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
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
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
312 U.S., at 115, 61 S.Ct., at 457.
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. [FN21] 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 283 for appellees'
argument that, because it regulates a particular land use,
the Surface Mining Act is beyond congressional Commerce Clause
we turn to the question whether the means selected by Congress
were reasonable and appropriate.
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, 97 S.Ct.
1610, 51 L.Ed.2d 811 (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, 97 S.Ct. 1635,
52 L.Ed.2d 166 (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, 90 S.Ct. 1695, 26 L.Ed.2d 63 (1970).
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., and Supp. III), and the Clean Water Act, 33
U.S.C. § 1251 et seq. (1976 ed., and 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.
District Court invalidated §§ 515(d) and (e) of the Act, which
prescribe performance standards for surface coal 284
mining on "steep slopes,"
[FN22] 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
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 postreclamation
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). [FN24]
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."
FN23. 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).
FN24. Section 515(c),
30 U.S.C. § 1265(c) (1976 ed., Supp. III), establishes a separate
variance procedure for mountaintop mining operations.
District Court's ruling relied heavily on our decision in
National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct.
2465, 49 L.Ed.2d 245 (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
because it interferes with the States'
"traditional governmental function" of regulating
land use. The
court held that, as applied to Virginia, the Act's steep-slope
provisions impermissibly constrict the State's ability to
make "essential decisions."
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. [FN26]
The court therefore permanently enjoined enforcement
of §§ 515(d) and (e). [FN27]
FN25. 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.
FN26. On the basis
of the evidence presented at trial, the court found that postmining
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.
FN27. 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
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 841, 96 S.Ct., at 2469, 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."
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 845,
96 S.Ct., at 2471, and federal regulation "directed,
not to private citizens, but to the States as States,"
to the former, we found no Tenth Amendment impediment to congressional
action. Instead, we reaffirmed our
power over areas of private endeavor, even when its exercise
may pre-empt 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, 262, 85 S.Ct. 348, 360, 13 L.Ed.2d 258 (1964)."
Id., at 840, 96 S.Ct., at 2469.
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
at 854, 96 S.Ct., at 2475.
It indicated that when Congress attempts to directly
regulate the States as States the Tenth 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 845, 96 S.Ct., at 2471.
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 852, 96 S.Ct., at 2474,
the Court concluded that Congress could not, consistently
with the Tenth Amendment, "abrogate the States' otherwise
plenary authority to make [these decisions]." Id., at 846, 96 S.Ct., at 2471.
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 852, n. 17, 96 S.Ct., at 2474, n. 17.
In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666,
49 L.Ed.2d 614 (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 452-456, 96 S.Ct., at 2669-2671. Similarly,
in City of Rome v. United States, 446 U.S. 156, 179, 100 S.Ct.
1548, 1562, 64 L.Ed.2d 119 (1980), we held that the Tenth
Amendment places no restrictions on congressional power "to
enforce the Civil War Amendments 'by appropriate legislation.'
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 854, 96 S.Ct., at 2475.
Second, the federal regulation
288 must address matters that are
indisputably "attribute[s] of state sovereignty."
Id., at 845, 96 S.Ct., at 2471.
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
at 852, 96 S.Ct., at 2472. [FN29]
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
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, 95 S.Ct. 1792,
44 L.Ed.2d 363 (1975), reaffirmed in National League of Cities
v. Usery, 426 U.S., at 852-853, 96 S.Ct., at 2474-2475.
See also id., at 856, 96 S.Ct., at 2476 (BLACKMUN,
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, 97 S.Ct. 1635, 52 L.Ed.2d 166 (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, 97 S.Ct. 1635, 52 L.Ed.2d
166 (1977); Brown
v. EPA, 521 F.
2d 827, 837-842 (CA9 1975), vacated
and remanded, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (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. [FN30]
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, 98 S.Ct. 296,
54 L.Ed.2d 188 (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, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977).
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
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
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.
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
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
pre-empt state laws regulating private activity affecting
interstate commerce when these laws conflict with federal
e. g., Jones v. Rath Packing Co., 430 U.S. 519, 525-526, 97
S.Ct. 1305, 1309, 1310, 51 L.Ed.2d 604 (1977); Perez v. Campbell,
402 U.S. 637, 649-650, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233
Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141-143,
83 S.Ct. 1210, 1216-1217, 10 L.Ed.2d 248 (1963);
Bethlehem Steel Co. v. New York State Labor Relations
Bd., 330 U.S. 767, 772-776, 67 S.Ct. 1026, 1029-1031, 91 L.Ed.
1234 (1947); Hines
v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed.
581 (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, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973);
Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d
299 (1961); Rice
v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91
L.Ed. 1447 (1947); Transit
Comm'n v. United States, 289 U.S. 121, 53 S.Ct. 536, 77 L.Ed.
1075 (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, 317-319, 101 S.Ct. 1124,
1130-1131, 67 L.Ed.2d 258 (1981);
Sanitary District v. United States, 266 U.S. 405, 425-426,
45 S.Ct. 176, 178, 69 L.Ed. 352 (1925);
The Minnesota Rate Cases, 230 U.S. 352, 399, 33 S.Ct.
729, 739, 57 L.Ed. 1511 (1913);
Gibbons v. Ogden, 9 Wheat., at 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, 408, 45 S.Ct. 243, 245, 69 L.Ed. 683 (1925).
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
National League of Cities suggests that
the Tenth Amendment shields the States from pre-emptive 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, "pre-empt express state-law determinations contrary
to the result which has commended itself to the collective
wisdom of Congress...."
426 U.S., at 840, 96 S.Ct., at 2469. 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.
have already indicated that the Act satisfies this test. [FN31]
FN31. See supra,
at 2363. 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 pre‑empted by federal law.
As indicated in text, there are no Tenth Amendment
concerns in such situations.
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, 320-323, 33
S.Ct. 281, 283-284, 57 L.Ed. 523 (1913);
Athanasaw v. United States, 227 U.S. 326, 33 S.Ct.
285, 57 L.Ed. 528 (1913);
Cleveland v. United States, 329 U.S., at 19, 67 S.Ct.,
at 15; United
States v. Darby, 312 U.S., at 113-114, 61 S.Ct., at 456-457;
United States v. Wrightwood Dairy Co., 315 U.S., at
119, 62 S.Ct., at 526.
Cf. United States v. Carolene Products Co., 304 U.S.
144, 147, 58 S.Ct. 778, 781, 82 L.Ed. 1234 (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");
FPC v. Natural Gas Pipeline Co., 315
U.S. 575, 582, 62 S.Ct. 736, 741, 86
L.Ed. 1037 (1942); Hamilton v. Kentucky Distilleries &
Warehouse Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed.
194 (1919); Seven
Cases v. United States, 239 U.S. 510, 514, 36 S.Ct. 190, 191,
60 L.Ed. 411 (1916).
This Court has upheld as constitutional any number
of federal statutes enacted under the commerce power that
pre-empt particular exercises of state police power.
See, e. g., United States v. Walsh, 331 U.S. 432, 67
S.Ct. 1283, 91 L.Ed. 1585 (1947) (upholding Federal Food,
Drug, and Cosmetic Act, 21 U.S.C. §§ 301-392);
NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
1, 57 S.Ct. 615, 81 L.Ed. 893 (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. [FN33]
FN32. 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.'
States v. Darby, 312 U.S., at 116, 61 S.Ct., at 458, quoting
United States v. Rock Royal Co- operative, 307 U.S. 533, 569-570,
59 S.Ct. 993, 1010-1011, 83 L.Ed. 1446 (1939).
FN33. 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 846-847,
96 S.Ct., at 2471-2472.
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 847, 96 S.Ct., at 2472.
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, 534-535,
61 S.Ct. 1050, 1063-1064, 85 L.Ed. 1487 (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.
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 845,
96 S.Ct., at 2471. [FN34] Accordingly, we turn to the District
Court's ruling that the Act contravenes other constitutional
limits on congressional action.
FN34. 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.
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‑-lope 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. [FN35]
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." 294
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. [FN36]
Relying on this Court's decision in Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (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.
FN35. 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. 39, infra.
FN36. 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,
89-91, 67 S.Ct. 556, 564-565, 91 L.Ed. 754 (1947).
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
factual setting that makes such a decision
Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct.
1716, 1719, 32 L.Ed.2d 317 (1972);
Rescue Army v. Municipal Court, 331 U.S. 549, 568-575,
584, 67 S.Ct. 1409, 1419-1423, 91 L.Ed. 1666 (1947);
Alabama State Federation of Labor v. McAdory, 325 U.S.
450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945).
Adherence to this rule is particularly important in
cases raising allegations of an unconstitutional taking of
Just last Term, we reaffirmed that
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, 175, 100 S.Ct.
383, 390, 62 L.Ed.2d 332 (1979) (citations omitted).
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, 260, 100 S.Ct.
2138, 2141, 65 L.Ed.2d 106 (1980).
The test to be applied in considering this facial challenge
is fairly straightforward.
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 260, 100 S.Ct., at 2141.
See Penn Central Transp. Co. v. New York City, 438
U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).
The Surface Mining Act easily survives scrutiny under
Act does not, on its face, prevent beneficial use of coal-bearing
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. [FN37] The
Act does not purport to regulate
alternative uses to which coal-bearing lands may be put.
in the posture in 297
which these cases comes 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.
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
§ 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
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 (D.C.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.
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 re-establishment 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.
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. [FN39]
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. [FN40]
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.
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, 94, n. 39, 98 S.Ct. 2620, 2641,
n. 39, 57 L.Ed.2d 595 (1978);
Regional Rail Reorganization Act Cases, 419 U.S. 102,
Larson v. Domestic & Foreign Commerce Corp., 337
U.S. 682, 697, n. 18, 69 S.Ct. 1457, 1465, n. 18, 93 L.Ed.
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
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
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
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.
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). [FN42] The Secretary's decision in the
formal review proceeding is subject to judicial review pursuant
to § 526(a)(2), 30 U.S.C. § 1276(a)(2) (1976 ed., Supp. III).
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
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
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. [FN43]
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
the 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.
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
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, 540, 101 S.Ct.
1908, 1915, 68 L.Ed.2d 420 (1981);
Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct.
780, 786, 28 L.Ed.2d 113 (1971). The Court has often acknowledged, 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, 677-680, 94 S.Ct. 2080, 2088-2090, 40 L.Ed.2d
452 (1974); Boddie
v. Connecticut, supra, 401 U.S., at 378-379, 91 S.Ct., at
786; Ewing v.
Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70
S.Ct. 870, 872-873, 94 L.Ed. 1088 (1950);
Fahey v. Mallonee, 332 U.S. 245, 253-254, 67 S.Ct.
1552, 1555-1556, 91 L.Ed. 2030 (1947);
Yakus v. United States, 321 U.S. 414, 442-443, 64 S.Ct.
660, 675-676, 88 L.Ed. 834 (1944); Bowles v. Willingham, 321
U.S. 503, 519-520, 64 S.Ct. 641, 649-650, 88 L.Ed. 892 (1944);
Phillips v. Commissioner, 283 U.S. 589, 595-599, 51
S.Ct. 608, 611-612, 75 L.Ed. 1289 (1931);
North American Cold Storage Co. v. Chicago, 211 U.S.
306, 315-321, 29 S.Ct. 101, 104-106, 53 L.Ed. 195 (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.
immediate cessation order provisions reflect Congress' concern
about the devastating damage that may result from mining disasters.
[FN44] 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
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, 339
U.S., at 599, 70 S.Ct., at 872.
See Mackey v.
 Montrym, 443 U.S. 1, 17-18,
99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321 (1979); id., at 21,
n. 1, 25, 99 S.Ct., at 2622, n. 1, 2624 (Stewart, J., dissenting);
North American Cold Storage Co. v. Chicago, supra,
211 U.S., at 315-316, 29 S.Ct., at 104. 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.
FN44. 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. 90-91 (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
See H.R.Rep.No.94-1445, p. 19 (1976).
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.
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
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."
The Secretary's regulations define "a significant, imminent
environmental harm" in the following terms:
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.
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).
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, 339 U.S., at 595-596, 70 S.Ct., at 871 (" '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, 332 U.S., at 250-251, n.
1, 67 S.Ct., at 1554, 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, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975).
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
v. United States, 321 U.S., at 434-435, 64 S.Ct., at 671-672.
The possibility of administrative error inheres in
any regulatory program;
statutory programs authorizing emergency administrative
action prior to a hearing are no exception. [FN46]
303 explained in Ewing v. Mytinger
& Casselberry, Inc., 339 U.S., at 599, 70 S.Ct., at 872:
FN46. 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.
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."
operators are afforded prompt and adequate post-deprivation
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, 98 S.Ct. 1197, 55 L.Ed.2d
460 (1978). Accordingly, we turn to the District Court's holding
that other sections of the Act violate the Fifth Amendment's
Due Process Clause.
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 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."
[FN47] Once the
escrow requirement is met, the operator receives a full adjudicatory
hearing before an administrative law judge, with a right of
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).
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).
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.
examination of appellees' constitutional challenges to the
Surface Mining Act persuades us that the Act is not
305 vulnerable to their pre-enforcement
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
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.
CHIEF JUSTICE, concurring.
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.
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
I join the Court's opinions in these cases and in No. 80-231
because in them the Court acknowledges and reaffirms that
e. g., ante, at 2362.
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.
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
306 property for public use. [FN1]
See San Diego Gas & Electric Co. v. City of San
Diego, 450 U.S. 621, 654, 101 S.Ct. 1287, 1305, 67 L.Ed.2d
551 (1981) (BRENNAN, J., dissenting). [FN2]
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, 260, 100 S.Ct. 2138,
2141, 65 L.Ed.2d 106 (1980);
Kaiser Aetna v. United States, 444 U.S. 164, 175, 100
S.Ct. 383, 390, 62 L.Ed.2d 332 (1979).
I agree with the Court, therefore, that it is premature
to consider in these cases questions under the Compensation
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 2371, 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.
We assume, of course, that Congress weighed this probable
cost against the desirable environmental goals of the Act.
The "taking" question considered by Justice BRENNAN
and the three Justices who joined him was not reached by a
majority of the Court.
FN3. In Agins,
447 U.S., at 260, 100 S.Ct., at 2141, 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."
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"
coal, Virginia's most valuable natural resource, [FN4] 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,
solely in its coal.
Mining the coal is a major industrial activity in an
otherwise impoverished area of Virginia. [FN5]
FN4. The District
Court found that the mining of coal is a $2 billion per year
industry in the Commonwealth.
FN5. It is said,
perhaps frivolously now, that bootlegging was the second most
remunerative activity in that part of the State.
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
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, 434 (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.
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.