The enactment of the Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) launched a new era in the regulation of surface coal mining and the surface effects of underground mining. SMCRA ended the era of exclusive state regulation, prompted in substantial part by the perceived failure of the states to do the job effectively. Instead, there was substituted a federal program of stringent environmental controls and performance standards, accompanied by a mechanism through which the states could regain regulatory predominance. A state that wanted to regulate surface coal mining operations within its borders could develop a state program to implement fully and effectively the Act and the federal regulations and to demonstrate the state's capacity and commitment to proper enforcement. By obtaining federal approval of its state program, a state was awarded primacy and regained exclusive jurisdiction over the regulation of surface coal mining on non-federal lands within the state. As a check against state laxity, Congress reserved oversight authority in the Office of Surface Mining (OSM) and armed OSM with various mechanisms to ensure that primacy would not become synonymous with permissiveness. Several years of experience with state primacy and federal oversight have introduced a number of thorny legal issues. Significant among them are the interrelationship between prior state decisionmaking and federal enforcement authority and the extent to which state determinations should be given binding effect precluding subsequent federal redetermination. What began as a trickle of decisions wrestling with these issues has become a minor torrent. This article will consider some of the recent cases and will review the evolving and somewhat confused state of the law. We then suggest some guiding principles for preclusion of routine federal redeterminations-principles that are wholly consistent with the purposes of SMCRA, efficient administrative and judicial process, and the interests of justice.
John A. MacLeod & Thomas C. Means,
Preclusion under Primacy: The Effect of Prior State Determinations on Federal Oversight Enforcement under the Surface Mining Control and Reclamation Act,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol88/iss3/10