Comment by John D. Edgcomb
A major role reversal in the statutory and regulatory control of surface mining operations in the United States was set in motion with the passage in 1977 of the Surface Mining Control and Reclamation Act (SMCRA). This Act represents yet another major federal intrusion into an area of environmental protection that was once predominately within the states' regulatory domain. SMCRA, like the Federal Water Pollution Control Act Amendments of 1972 and the Clean Air Act before it, operates primarily on the basis of cooperative federalism, a shared federal and state government responsibility for standard setting, funding, and enforcement.
The long and tortuous history of SMCRA reflects the traditionally strident opposition to both mining reclamation laws specifically and federal usurpation of state regulatory powers in general. SMCRA's passage has not silenced its opponents; coal development interests continue to lobby for relaxed standards and the Reagan administration has responded positively to the overtures, cloaking its actions in the rhetoric of a professed desire to return federal power and revenues to the states whenever possible. Additionally, the states themselves in some instances have initiated activities to recoup some of their co-opted powers, including legislative amendment of SMCRA and litigation challenging SMCRA's constitutionality.
This comment will analyze cooperative federalism in the context of SMCRA and will seek to identify the balance of federal and state roles that most effectively serves the objectives of the Act. A factual background examining the demand for coal, the environmental hazards of coal mining, and pre-SMCRA state regulation of surface mining will provide a basic understanding of the competing interests sought to be reconciled. A discussion of SMCRA and its implementing regulations will follow, focusing on the allocation of regulatory powers between the state and federal governments. Next, the various criticisms and challenges to that allocation of powers will be reviewed, with an emphasis on the broader implications of the resolutions reached. Finally, an evaluation will be made of the Reagan administration's impact on SMCRA's regulatory program. This review will demonstrate the flexibility inherent in the “cooperative” federalism approach to environmental regulation and how such statutory programs can bend before political winds.
About the Author
John D. Edgcomb.
Citation
58 Tul. L. Rev. 299 (1983)