Hodel v. Virginia Surface Mining & Reclamation Association, Inc.

PETITIONER:Hodel
RESPONDENT:Virginia Surface Mining & Reclamation Association, Inc.
LOCATION:Western District Court of Kentucky

DOCKET NO.: 79-1538
DECIDED BY: Burger Court (1975-1981)
LOWER COURT:

CITATION: 452 US 264 (1981)
ARGUED: Feb 23, 1981
DECIDED: Jun 15, 1981

ADVOCATES:
J. Marshall Coleman – on behalf of Appellees (No. 79-1538) and of Appellants (No. 79-1596)
Marshall Coleman – for appellees in 79-1538 and for appellants in 79-1596
Peter Buscemi – on behalf of Appellant (No. 79-1538) and of Appellees (No. 79-1596)

Facts of the case

Question

Audio Transcription for Oral Argument – February 23, 1981 in Hodel v. Virginia Surface Mining & Reclamation Association, Inc.

Warren E. Burger:

We will hear arguments next in Secretary of Interior v. The Surface Mining Company and the related case.

Mr. Buscemi.

Peter Buscemi:

Thank you, Mr. Chief Justice, and may it please the Court:

This case, like the one that follows it, involves several challenges to the constitutionality of the Surface Mining Control and Reclamation Act of 1977.

This case is here on direct appeal from the United States District Court for the Western District of Virginia.

The original plaintiffs were an association of coal mining companies and 63 of its members.

The Commonwealth of Virginia intervened as a plaintiff in the District Court.

The primary constitutional provisions involved are the Commerce Clause, Article I, Section 8; the Tenth Amendment; and the Just Compensation and Due Process Clauses of the Fifth Amendment.

I plan to address the constitutional questions in that order after I first describe the statutory provisions that are at issue here in the overall statutory scheme for regulating surface mining of coal.

For present purposes the critical portion of the statute is Title V which is entitled,

“Control of Environmental Impacts of Surface Coal Mining. “

Section 501 of the Act establishes a two-stage program for the regulation of surface mining.

During the initial stage, also called the interim stage in the Secretary’s regulations, mine operators are required to comply with only some of the performance standards set up by the Act.

Among the ones applicable during this interim stage are the so-called steep slope provisions in Section 515(d).

They apply to surface mining on slopes greater than 20 degrees.

They require mine operators to avoid the placement of debris, spoil material, or abandoned equipment on the downslope beneath the mining cut.

They further require restoration of the mining site to its approximate original contour after mining is completed, and complete coverage of the so-called high wall, which is the vertical face of the mine cut.

Another portion of the Act that becomes immediately effective during the interim period is Section 522(e), particularly 522(e)(4) and (5), which with various qualifications and exceptions prohibit surface mining altogether within specified distances of roads, schools, churches, parks, public buildings, and cemeteries.

During the interim period the Secretary of the Interior is primarily responsible for enforcing the Act.

The interim regulatory program remains in effect in each state until a permanent program has been established in that state.

States wishing to assume primary responsibility for regulation of surface coal mining during the permanent phase must submit to the Secretary a proposed permanent program demonstrating, first, that the state legislature has adopted the necessary laws implementing the environmental protection standards established by the Act.

And second, that the state has the administrative and the technological capability to enforce those standards.

William H. Rehnquist:

Mr. Buscemi, supposing that that statute at the phase you now describe didn’t talk about coal at all, it simply talked about the desirability of zoning on a national level, and Congress passed a law saying that for any state that doesn’t zone land and keep a certain amount of prime farm land in existence that is now in existence, we will supersede that state’s regulatory power with our own zoning act.

Do you think it has the power under the Commerce Clause to do that?

Peter Buscemi:

Well, I’m not sure that I completely appreciate the question, Mr. Justice Rehnquist, because I’m not sure that I understand the factual underpinning that Congress would have for that sort of regulation.

My answer to that question and hypotheticals of that kind is essentially that if Congress finds, and has a rational basis for finding, that a particular situation that exists in the states is affecting interstate commerce.

And if Congress devises a method that’s rationally related to the protection of the regulation of interstate commerce, the statute is constitutional.

I’m not sure what the justification would be for the statute that you’ve just suggested, but I think that the test would be the same as it is here.

William H. Rehnquist:

Well, in Chief Justice Hughes’ opinion in Jones & Laughlin v. NLRB, when he was upholding the National Labor Relations statute, he said that, regarding the Commerce Clause,

“Undoubtedly the scope of this power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them in view of our complex society would effectually obliterate the distinction between what is national and what is local and create a completely centralized government. “

William H. Rehnquist:

Now, does the Government take the position that the law has gone so much beyond that that that is no longer the limit on the Commerce Clause?

Peter Buscemi:

Well, Mr. Justice Rehnquist, I think that the Court’s decision in National League of Cities v. Usery establishes that there is some impact of the federal system of government, our state system, the Tenth Amendment, or the federal system of government generally, however you want to characterize that decision, on the exercise of the commerce power.

And so I don’t think that Mr. Chief Justice Hughes’ statement that you’ve just read can be completely disavowed.

We don’t take that position here.

Warren E. Burger:

Then, do you think that Congress after reciting the history of surface farm lands in Oklahoma being blown over into Kansas and other places, back in the ’30s, could require under the Commerce Clause that all farmers plough their land with contour plowing as distinguished from straight line plowing?

Peter Buscemi:

Well, Mr. Chief Justice, again, my answer to that question is essentially the same as it was to Mr. Justice Rehnquist.

Warren E. Burger:

My question gives you a concrete, specific statute, though.

Peter Buscemi:

Well, I have to confess ignorance as to the situation in the Dust Bowl in the ’30s, and as to the impact of contour plowing as opposed to some other kind of plowing–

Warren E. Burger:

Well, assuming… add to it the congressional recital that scientific research and practice has demonstrated that contour plowing will preserve the soil for future generations.

Peter Buscemi:

–I assume, Mr. Chief Justice, that if Congress rationally found that the failure to adopt a particular method of plowing or a particular method of cultivating farmlands had an adverse effect on interstate commerce and if Congress further rationally concluded that regulation of the method of plowing would help to alleviate that effect, that Congress could regulate that sort of agricultural activity, just as Congress has in fact regulated agricultural cultivation, for example, with the pricing regulations and also with the farm subsidy laws.

Warren E. Burger:

Well, but they’ve done that by use of the power of the purse, granting subsidies if farmers complied with certain regulations.

I’m talking about a flat requirement that all farmers on certain findings engage in contour plowing.

Do you think they might be able to do it?

Peter Buscemi:

Well, Mr. Chief Justice, I think that the findings are critical.

That is not the sort of thing that can be so lightly assumed in the hypothetical, because Congress here, in the Surface Mining Act, as it has in the other Commerce Clause legislation that the Court has sustained, has very carefully examined exactly the situation that did prevail and has determined that particular adverse effect on interstate commerce did exist.

And I think that if you are willing to assume that Congress has made all the necessary findings and Congress has determined that there is a rational relationship between–

Warren E. Burger:

The word necessary presupposes the answer a little bit, doesn’t it?

Peter Buscemi:

–That’s essentially what I’m trying to say, Mr. Chief Justice.

I think that once you make that assumption you are presupposing the answer.

The question really is, what is the basis for the congressional action, and that’s something that, you know, we can only talk about in connection–

Warren E. Burger:

The basis would be that the United States Department of Agriculture says it knows more about farming and soil conservation than the states do, and Congress accepts that.

Peter Buscemi:

–But, Mr. Chief Justice, that’s not the situation we have here.

We have a very careful, detailed, lengthy investigation by Congress into surface mining and its adverse effects on commerce, and we have the legislative history that we’ve set out in the Appendix of our brief in this case which demonstrates, I think, that Congress has taken a very close look at surface mining and its effects on interstate commerce, and I don’t–

Byron R. White:

Mr. Buscemi, what does that investigation show the effect on commerce is or may be if there is surface mining of coal without restoring the… say, the high wall?

Peter Buscemi:

–Well, I think, Mr. Justice White–

Byron R. White:

I can understand why surface mining might be said to affect commerce, but that wouldn’t mean that anything that Congress said, ordered with respect to surface mining would have an effect on commerce.

Peter Buscemi:

–I think that’s correct, Mr. Justice White, but I think in particular the high wall regulation that you, or the high wall statutory provision that you refer to is very closely connected to preventing adverse environmental effects from surface mining.

I think that the–

Byron R. White:

Well, you mean anything that affects the environment affects commerce?

Is that your suggestion?

Peter Buscemi:

–Well, I think that that is one of the kinds of effects on commerce that Congress can consider, and I think that in this case that Congress has found that there is substantial environmental damage caused by surface mining.

Byron R. White:

Well, what if… what if Virginia had a law that required, when you surface mine on these steep areas, that when you’re through mining you flatten them and cover them.

Now, you suggest that the United States would be empowered to say, because of its effect on commerce, would be empowered to say, no, you may not flatten them, you must rebuild them and reestablish their original contour?

Peter Buscemi:

Subject, of course, to the test that it would have to bear a rational relationship.

Byron R. White:

Well, I’m asking you what that is.

What difference does it make to commerce whether they flatten the land and cover it or restore it to the contour?

That’s what I’m asking you.

Peter Buscemi:

I understand, Mr. Justice White, but in point of fact, in this statute, under Section 615, it is permissible to flatten the land.

The mountaintop removal method is specifically authorized by the statute so that Congress has not prevented that sort of activity.

Byron R. White:

So you suggest that if miners want to not restore its original contour in these steep places, they need not?

Peter Buscemi:

That’s correct.

They can use the mountaintop removal method of mining which essentially slices off the peak of the mountain rather than gouging out strips along the side of the mountain.

Byron R. White:

Well, so you’re not answering my question, again.

Suppose that Virginia says, go ahead and gouge out and strip mine the way you’re doing it, but then flatten it.

Instead of recontouring the area, flatten it out, just flatten, make it flat, and cover it.

Now, the United States could nevertheless require that they restore the contour under the Commerce Clause?

Peter Buscemi:

I’m not sure specifically what you mean by flattening it and covering it, but in fact, again with respect to the strip mining, the surface mining on the side of the mountain, the steep slope provisions do provide variances that will allow the maintenance of flat benchland if that is necessary for public use or a higher economic use.

Byron R. White:

Well, you still haven’t suggested to me what the effect on commerce is.

Peter Buscemi:

What the effect on commerce is of strip mining?

Byron R. White:

No, of not restoring the contour but flattening it and covering it some other way.

Peter Buscemi:

Well, Mr. Justice White, I refer you to the findings that Congress made in Section 101 of the statute.

Byron R. White:

Well, don’t refer me, I want to ask… you can tell me what–

–We have no way of reviewing those findings.

Peter Buscemi:

Well, that’s precisely my point, Mr. Justice Rehnquist.

Section 101 of the statute contains Congress’s findings with respect to the environmental impact that surface mining has.

Byron R. White:

Well, you go ahead and tell me what impact on commerce it has.

That’s what I’m asking you.

Peter Buscemi:

In Section 101 of the statute Congress has found that coal mining operations contribute significantly to the nation’s energy requirements, that surface mining results in disturbance of surface areas, that burden and adversely affect commerce by destroying and 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–

Byron R. White:

I can understand all of that but I still don’t identify in that listing any specific impact on commerce by a failure to restore the original contour when these steep places are mined.

Peter Buscemi:

–Well, I think, Mr. Justice White, the question is not whether every individual failure to restore a particular surface mine to its approximate original contour has a substantial effect on commerce.

Peter Buscemi:

Rather, the question is whether Congress can regulate this entire activity that has a substantial effect on commerce.

Byron R. White:

So your answer to me is that it doesn’t make any difference whether this particular phase that’s regulated has any effect on commerce, as long as strip mining is subject to regulation, that’s the end of the?

Peter Buscemi:

Well, it certainly doesn’t make any difference whether you can point to a particular mine and identify the particular effect on commerce from that mine.

That is certainly correct.

John Paul Stevens:

Well, I’m still a little puzzled.

Do you take the position that the general practice for mines as a whole of requiring the restoration of the slope does in fact have some impact on commerce by preventing the various things that Congress found, such as erosion and floods and so forth and so on?

Do you take that position?

Peter Buscemi:

Yes.

John Paul Stevens:

Or are you taking the more extreme position that you don’t even have to have that as long as the activity is regulated, is subject to regulation?

Peter Buscemi:

Well, I think that with respect to the form of regulation that Congress chooses, there must be a rational relationship between that regulation and the protection and the regulation of commerce.

I don’t think Congress is free to say surface mining is subject to regulation–

John Paul Stevens:

What your answer to Mr. Justice White, then, is, is that some of the things that you read are in fact, looking at the class of activity as a whole, related to commerce.

Peter Buscemi:

–Yes.

John Paul Stevens:

Which is different from the… all right.

Peter Buscemi:

Now, I want to make the point–

Warren E. Burger:

Can you give us an example or two of what would be the negative impact on commerce?

Flush that out a little.

Peter Buscemi:

–I really don’t know how to respond to that except by saying that the list that I just read, I think, indicates that there is a substantial effect on commerce.

Certainly–

Warren E. Burger:

Well, because Congress says so doesn’t make it true, necessarily.

I’m asking you for illustrations, concrete illustrations, as to what you think Congress was driving at.

Peter Buscemi:

–Well, I think, Mr. Chief Justice, for example, the Buffalo Creek flood disaster, which we’ve cited or mentioned in one of the briefs and which is mentioned in the congressional reports, is the kind of disaster that Congress is trying to avert through regulating surface mining, and I think that where hundreds of lives are lost, there’s no question of the–

Warren E. Burger:

That’s not a Commerce Clause issue, is it?

The loss of lives?

Peter Buscemi:

–I think, for example, that if you look at the child labor legislation that this Court upheld under the Commerce Clause in Darby, there’s no question that Congress can try to pursue other ends in the exercise of its Commerce Clause power.

I want to make the point that as far as I can understand their argument, plaintiffs don’t disagree with any of what we’ve been saying so far.

Their point is that the Surface Mining Act affects land use and land use is something that is committed exclusively by the Constitution to the states, and that that’s why this statute exceeds the Commerce Clause.

And they cite this Court to the decision in McCready v. Virginia in 1877, and they talk about the separation of production and commerce.

But, as the Court held in Darby and in Jones & Laughlin which Mr. Justice Rehnquist referred to, and in Wickard v. Filburn, and Brightwood Dairy and a host of other cases, that the rigid separation of production and commerce is no longer the rule that’s followed by this Court.

William H. Rehnquist:

But if there is no rigid separation, then it seems to me you’re just pushing it to the outer edge and saying that Congress can supersede any state authority by simply a set of findings which are unreviewable in this Court, or any other court.

Peter Buscemi:

Mr. Justice Rehnquist, I think that, for example, in your dissent in this Court in Fry v. United States, you make the point that there is a very broad discretion in Congress to make findings, and that’s part of what Congress is entitled to do, and you made that point, I believe, in the connection of United States v. California, which you specifically said you thought was a correct decision because Congress had made certain findings about the impact of railroad hazards on public safety and on commerce.

It is true that Congress does have an extremely broad factfinding capability and discretion, but I don’t… that does not mean that there is no review whatsoever.

There must be a rational basis for a factual finding that Congress has made, and I think that the legislative record in this case, which includes volumes and volumes of hearings and evidence of the negative effects that surface mining has had, demonstrates that there is a basis for the congressional findings.

Now, there are, by the way, a number of federal statutes that affect land use.

I don’t think there can be any question about that, and I’m not sure exactly what the district court and what appellees mean when they say that Congress is not free to effect land use, because, for example, the Clean Air Act and the Clean Water Act, the historical preservation statutes in the Federal Code that we discussed in the Grand Central Station brief, the Wild and Scenic Rivers Act, a number of these statutes have effects on land use, and plaintiffs, I don’t believe, contend that all of those statutes go beyond the Commerce Clause.

There’s nothing about the phrase “land use” that’s sacrosanct under the Constitution.

I mean, the Constitution does not say that states are the only governmental entities entitled to regulate land use.

Warren E. Burger:

There was something about powers not expressly granted having been reserved, isn’t there somewhere?

Peter Buscemi:

That’s true, Mr. Chief Justice, but here the Commerce Clause power is expressly granted.

That’s precisely the point.

Warren E. Burger:

Well, we’ve been trying, I think, several of us to get a specific focus on just how it affects interstate commerce.

Peter Buscemi:

Well, Mr. Chief Justice, I think I’ve given my best answer to that question.

I think that Congress has found that it affects interstate commerce in several ways and I think that those findings are rational findings and they’re supported by the evidence in the legislative record, in the committee reports, in the hearings, and so on.

I think, Mr. Chief Justice, even the record in the district court in this case provides several examples of… the district court’s own opinion says that in the absence of this legislation, or if this legislation is invalidated, there will be negative consequences, not only for coal mining itself, but also for the safety and the health of the people in mining communities.

Now, of course–

Potter Stewart:

On this issue, you’re the respondent, aren’t you?

Peter Buscemi:

–That’s exactly right.

That’s exactly the point I was just about to make, because from this point–

Potter Stewart:

The Court of Appeals held in your favor on this issue?

Peter Buscemi:

–the district court ruled in our favor.

That’s not true in the Indiana case, but the district court here sustained the statute on the Commerce Clause ground.

Now, admittedly, this Commerce Clause-Tenth Amendment or Federal System argument emerges to some extent in… this Court in National League of Cities said that the statute there was unquestionably valid under the Commerce Clause, but that the Tenth Amendment or the state-federal relationship in our constitutional system imposed some limitations on Congress’s power to exercise the Commerce Clause delegated power.

So that that was… even in National League of Cities there was no question that the Commerce Clause power alone was sufficient to justify the congressional action.

The question is whether there was some additional limit.

And that brings me to the first point on which the district court ruled against the Secretary, and that is on this Tenth Amendment argument.

But this statute is far different from the one that the Court considered in National League of Cities, and the reaffirmation of the decision in United States v. California, in National League of Cities, I think is very instructive because there, in California, we had a federal statute that was being applied directly to the states.

This statute does not apply directly to the states in any way.

This statute applies only to coal mine operators.

The Federal Government does not require the states to undertake any measures whatsoever.

If the states do not wish to participate in the regulatory program that the federal statute establishes, they need not do so.

Peter Buscemi:

If they wish to do so, they can submit a proposed program to the Secretary and… by the way, there is a substantial amount of discretion left to the states in those proposed programs.

In fact, in Section 101(f) of the Act Congress itself stated that because of the diversity in terrain and climate, chemical and other physical conditions, the primary governmental responsibility should rest with the states.

That was Congress’ whole plan under this statute.

And the Court of Appeals for the District of Columbia Circuit in reviewing a request for preliminary injunction in the rule, the regulation review proceeding that’s going on there right now, denied the preliminary injunction and in an opinion by the court… the panel included Judge Tamm, Judge McKinnon, and District Judge Greene… announced that this statute was truly an exemplary piece of federalist legislation because of the interaction between the state and the federal governments.

And I think that Congress has tried to strike the balance in a fair way here between the state and the federal government without requiring the states to do anything.

The states may… there is a substantial amount of leeway in framing these proposed permanent programs, and several of those proposed programs have already been approved, including one by the State of West Virginia.

William H. Rehnquist:

But a state is not free to decide that it will have no program?

Peter Buscemi:

Well, a state, Mr. Justice Rehnquist, is free to decide that it will not regulate surface mining at all, but in that event the Federal Government will regulate surface mining.

William H. Rehnquist:

Under the Commerce Clause?

Peter Buscemi:

Under the Commerce Clause.

That’s correct.

And my only point, at this stage, is that the Tenth Amendment does not restrict the congressional decision to do that because, as this Court recognized in National League of Cities, there is nothing in the Tenth Amendment that prohibits regulation of individual entrepreneurs in private business.

That distinction was expressly preserved.

I think that I would like to reserve the balance of my time for rebuttal at this point, and I think I will address the taking questions in connection with the Indiana case, since they are exactly the same.

Thank you.

Warren E. Burger:

Very well.

Mr. Attorney General.

J. Marshall Coleman:

Mr. Chief Justice, and may it please the Court:

In this case we are really talking about the idea of a state.

This is not a question of whether something is too local to be reached by the Congress through the exercise of its authority under the Commerce Clause.

That is settled.

It’s not even a case that involves whether the Congress can do things that affect state functions, because that is also settled.

Environmental laws have some impact on that.

Here we’re talking, on the other hand, about a wholesale displacement of integral state functions, because the Act in question results in the abridgment of state power to shape its communities and to shape its future.

Potter Stewart:

Is this, then, a matter of the extent of the commerce power, or is it a matter of an impediment, in this case a constitutional impediment, erected by the Ninth and Tenth Amendments, perhaps, to the exercise by Congress of the commerce power?

J. Marshall Coleman:

Well, you know, the district court found that it was not the first, that the commerce power was sufficient.

I would urge to the Court that taking the commerce power this far would stretch it to the breaking point, and I am sympathetic with counsel–

Potter Stewart:

As I understand the National League of Cities, which is a case cited a good deal by both sides, at least in their briefs and relied on considerably by you, as I understand that case, it didn’t go to the scope of the commerce power–

J. Marshall Coleman:

–That’s right.

Potter Stewart:

–But rather to an impediment to the exercise of the commerce power.

J. Marshall Coleman:

That’s right.

And that’s what I want to focus on, because that was the holding of the court, and it’s the–

Potter Stewart:

In this case.

J. Marshall Coleman:

–in this case.

I think that–

Potter Stewart:

I mean, in other words, nobody could quarrel with the scope of the commerce power.

If Congress passed a law regulating newspapers, that… some of them go to two or three or more states, but it might run directly afoul of the First Amendment.

J. Marshall Coleman:

–Well, that’s right, and I’m not going to concede that the commerce power can be stretched this far.

But even if it were found that it could–

Potter Stewart:

As the Court of Appeals did find.

J. Marshall Coleman:

–As the court has said–

Potter Stewart:

The district court.

J. Marshall Coleman:

–it still collides with the idea of federalism, which is the essence of American democracy.

The idea that the people speak not just through the Congress but that they speak through the Constitution, which means that there is a role that exists, that’s real, that’s tangible, that’s reserved to the states and cannot be abridged.

The flaw in this case is not that it touches land use, because this Court has held that Congress can provide who must be served in restaurants, how much can be grown on property, who it can be sold to.

But this decision of the Congress erodes the whole power of self-determination because it prohibits to a community from saying what goes where.

No one will contest but that the state is free to say where its capital will be located, where its county seat is to be located, and until this hour, it has not been seriously contested that the question of community planning to determine the layout of the community, its shape, its face, its map, is integral to the authority and the integrity of a system of state responsibilities in a constitutional framework.

Potter Stewart:

Of course at the time the Constitution was adopted, I suppose there would have been a considerable doubt about the power of a state to regulate or determine that.

J. Marshall Coleman:

That may be true; in the last 80 years, I suppose, it’s become a traditional function of state government, recognized time and time again by this Court as recently as last term that the state does have considerable authority in community planning.

And even in earlier times it was the state, after all, that mapped out the roads and streets and the confines–

Potter Stewart:

There were no zoning laws.

J. Marshall Coleman:

–There were no zoning laws.

I think the first zoning law was a 20th century development.

But it’s not the question of the period of time, how long it’s been in effect, whether it’s a traditional function or not, it’s how important it is, and how much of it is deep-seated in the way states operate today.

Warren E. Burger:

Well, are you saying that whatever may have been the rights at that time, they were not granted to the federal government?

J. Marshall Coleman:

They were not.

And there has been no change since that time.

John Paul Stevens:

I think that’s a different argument.

A minute ago you said there was plenty of power in the federal government, but there’s an independent curtailment of the exercise of that power.

J. Marshall Coleman:

Right.

John Paul Stevens:

If there weren’t this independent doctrine that you could identify for us, there would be ample federal power, you don’t concede, under the district court’s reasoning–

J. Marshall Coleman:

Well, I don’t concede that–

John Paul Stevens:

–Arguendo, you say?

Arguendo.

J. Marshall Coleman:

–Arguendo, and I think that… I understood the Chief Justice to talk about whether or not this power had been given rise to by the states, or exercised by the states themselves.

And It probably wasn’t in as thoroughgoing a manner as it is now, but I think there was always the idea of community planning.

After all, Justice Chase told us in these two 1869 cases that a state is really defined as territory, people, and government, and that the overriding idea is the idea of a community.

And what we’re arguing here is not some doctrinaire view of localism but the idea of self-determination, that this is really a promoter of democracy.

William H. Rehnquist:

Well, wasn’t the theory at any rate of people who framed the Constitution the idea that the powers of government resided in the states to innovate as they would or would not and they delegated certain powers to Congress?

J. Marshall Coleman:

That was; yes.

William H. Rehnquist:

The Federal Government, although perhaps somewhat fictionally in the last 30 or 40 years, has been referred to as a government of limited powers.

J. Marshall Coleman:

Well, that’s one of the happy by-products of the Tenth Amendment and the entire structure that one state, as Justice Brandeis says, is free to experiment and not put the whole nation in peril, that legislation that is novel can be tried in one state.

If it works well there it can be adopted other places, but it doesn’t run the risk of making a national, a mistake that’s hard to rectify and doesn’t take into account the differences from locality to locality.

I think that this Act of Congress is a quantum leap into the vitals of the Tenth Amendment.

Because it does preempt essential attributes of state sovereignty and the scheme is exceedingly intrusive.

We’re not talking here about extractive techniques, we’re not talking about how you transport coal once it has been mined, we’re not talking about pollution control.

We’re talking about the shape of a community.

And I think in answer to the question put to counsel before I arose, Chief Justice Marshall has told us that this Court is not bound by Congressional findings, if those findings in fact are a pretext for taking on authority that it doesn’t have.

The character of a community really is founded in land.

Now, I don’t contest that indirectly Congress can reach local uses, that it can in some ways affect the private use of land.

But here it is taking away from a community the control over its own map.

The Congress can pass clearly and constitutionally a whole range of regulations to affect all manner of subjects, but not to displace as it does here reserved powers to the state.

This is really, if I might say, and I hope it will be, a Usery II, because–

John Paul Stevens:

Mr. Attorney General, may I just ask, to be sure I understand your contention, supposing Congress expressly found that the failure to restore the slope to the original contour would result in numerous floods of interstate waterways.

It has the power to do that.

Would you say the doctrine you describe would prevent Congress from enacting the statute based on such a finding?

J. Marshall Coleman:

–Well, I’d say, first, that the findings of Congress are not conclusive.

John Paul Stevens:

No, but assume that there was adequate support for such a finding.

I’m just trying to get the legal position you’re taking.

J. Marshall Coleman:

If there was such a finding, I would believe that the law should be in that case that if the means for effectuating the end of an abating clause is so intrusive of state powers, that the Usery opinion would come into effect and would prohibit the means.

J. Marshall Coleman:

In effect, it would be a kind of balance.

John Paul Stevens:

In other words, this law would still be unconstitutional?

J. Marshall Coleman:

That’s right.

John Paul Stevens:

Because you say that requiring the restoration of the slopes is intrusive of some inherent state power?

J. Marshall Coleman:

It’s intrusive, and of course, as the Court knows, the district court found as a matter of law that these slopes did not themselves cause floods.

In southwest Virginia, Mr. Chief Justice and Members of the Court, in Buchanan and Dickenson and Russell and Lee and Scott and Tazewell and Wise Counties, so much land is so steep-sloped that if this Act is upheld, those communities in the State of Virginia are going to lose control of their destiny.

And I think that this case draws into question our whole system of local governance.

Land use planning is an integral part of statehood, just as fire protection, police protection, sanitation, parks and recreation.

Potter Stewart:

And the enforcement of local criminal law.

J. Marshall Coleman:

And taxation.

Potter Stewart:

And yet, how do you reconcile a case like Perez v. the United States?

J. Marshall Coleman:

Is it necessary for me to reconcile that too?

Potter Stewart:

Well, I’d succeed… as you know, I dissented in that case, but I was alone.

J. Marshall Coleman:

Well, I think you were on the right track in your… It’s clear, Mr. Chief Justice, and the state and its people–

Potter Stewart:

No, I’m serious in my question.

It seems to me that that case runs exactly against everything you’ve been arguing to us.

J. Marshall Coleman:

–Well, I think it does too; and I’ve been before the Court on previous occasions to urge that much of our criminal law is being usurped by the writ of the habeas corpus, but you’ve told me about that and I won’t raise it again.

But I think it’s a serious question.

I just believe that it is appropriate to urge before the Court today that the Congress can’t zone the whole character of a community.

Now, it’s clear that while there are other significant issues in this case, the diminution of value to the property as the result of the original approximate contour requirement is a serious question of constitutional dimensions, because investment backed expectations have been from time out of mind that decisions about land use, certainly in the 20th century, if they’re made by anybody except the people themselves, will be made by the state and not by the Federal Government.

John Paul Stevens:

One other question, Mr. Attorney General.

The Virginia steep slope provision, unlike the Indiana case, where there’s a farmland, has a variance authorization for the Secretary of the Interior.

If in fact the statute were administered in a way that frequently resulted in variances in this part of the country where steep slopes are so common, would it still have the same impact, or are we perhaps getting to this question before we have to, until we know how often the?

J. Marshall Coleman:

Well, I think… I can say this about it, that it has no benefit to Virginia, first of all, factually, because the high wall must still be filled back in; there still must be backfilling.

So a variance is of no benefit to us at all.

We still have to comply with the law of gravity which really overrules the law in this case, because we can’t fill it back and make it stay.

These slopes are so extremely steep that when you put the fill material back in at an angle like this, the sedimentation just… it won’t hold; it won’t bind to the rock, and it will drift away, and it makes it impossible, as the district court has found, to do that.

But the question of if it were administered in a manner not to intrude upon the Tenth Amendment and the authority of the states to be masters of their own destiny, it would be an open question.

I would think it would still be so intrusive to say to Virginia, you could only have coal mined and the land taken care of at all if you do it according to the federal law.

John Paul Stevens:

I must have misunderstood.

John Paul Stevens:

You’re saying that there is no authority for… a variance would not relieve the miner of the obligation to restore to the original contour?

J. Marshall Coleman:

That’s right.

The original approximate contour permits of a variation, on the face of the statute, but another provision requires that the high wall must still be backfilled in.

And so, as the court has said on page 36-A of the Appendix,

“For all practical purposes the backfilling stipulation destroys the usefulness of the variance, since the high wall must still be covered. “

Potter Stewart:

I don’t understand those terms and I can’t visualize that.

J. Marshall Coleman:

Contour mining is involved in these counties in the following manner.

Someone goes into the side of a mountain where you have these veins of coal that are maybe two to three feet in depth and they outcrop all the way up the mountain.

They go in and cut their initial cut, which leaves a bench and a high wall.

And according to the Act, the overburden, the material that’s dug out–

Potter Stewart:

High wall is a vertical wall?

J. Marshall Coleman:

–It’s like a cliff.

They’ll just dig straight into it till they come to a 90-degree angle.

The overburden is then required, under the Act, to be put back down in a valley and you go all the way around the mountain.

The way it works in southwest Virginia, you contour right around the side of the mountain.

We don’t really have, as the court has found, any of this top of the mountain mining.

It’s not practical down there.

Then, after you get started, under the Act, you take the overburden which is at the bottom of the valley and put it back up on your bench, and then you backfill all the way around, and the high wall under the Act has to be covered up completely, even though the Act says there is a variance under the original approximate contour, if you have to fill the back wall up.

Potter Stewart:

Well, the requirement of filling up the high wall completely cancels out the variance?

J. Marshall Coleman:

That’s right.

Potter Stewart:

As a practical matter?

J. Marshall Coleman:

That’s right.

Mr. Chief Justice, as I have said before, the people, territory, and government add up to a state, and the primary concept is a community.

There are certain functions that have been recognized by this Court to be essential to the separate and independent existence of a state.

Nothing permits the direct abridgment of certain powers.

The Act in question displaces the state’s freedom to structure its integral operations of traditional government functions, and this law clearly does not comport with a federal system which is the essence of our system of democracy.

Chief Justice Chase’s words are perhaps best on this point when he said that our republic is founded in a Constitution which in all of its provisions looks to an indestructible union composed of indestructible states.

The questions raised in this case are serious and of constitutional moment because if those communities in the State of Virginia cannot determine what the face and shape and map of those communities are going to be, then we have no limits to the commerce power anywhere in the Constitution, and to cabin and to curb it someday in the future will be even more difficult.

This is the best case that the Court now has before it to make plain what has been thought for a long time, that there are limits to the commerce power, that those limits are contained in the Constitution itself, and that when the commerce power is exercised in a way to undo the right of a state or locality to be master of its destiny, they are not constitutional.

The question of taking has been amply brought out in the brief.

J. Marshall Coleman:

The Court has found, and in this case the Court I know will give due deference to the findings of the court in this case which finds that the land is of no benefit to the landowners except that it can be surface-mined.

It is so steep and of so little value that this Act in effect constitutes a violation of the Fifth Amendment.

Byron R. White:

Well, Mr. Attorney General, I take it, I think I did read something in the brief or in the papers somewhere that if the land could be flattened instead of recontoured and restored, it might well be of considerable value.

J. Marshall Coleman:

That’s correct.

Byron R. White:

Now, I suppose that even if you didn’t mine it and flattened it, it would be of considerable value?

J. Marshall Coleman:

That’s right.

And there’s an anomaly here, because if I own a mountain and decide to flatten it, and built a school in the exact countours that the man who owns the mountain next to me does, but first takes the coal out, I can do it, I can put my school or shopping center there, but he can’t.

Byron R. White:

Well, I take it the Federal Government, this law wouldn’t forbid the next day after you’ve restored all these contours and all these high… and covered all the high walls, if for some other reason you decided to flatten the land?

J. Marshall Coleman:

Not tomorrow, because the regulations that have been promulgated say that the bond has to remain in effect for five years.

Byron R. White:

Five years.

J. Marshall Coleman:

So you sit there and wait for five years and then you can come back and remove the overburden all over–

Byron R. White:

What happens if you didn’t mine it in the first place?

You could just–

J. Marshall Coleman:

–Exactly.

Byron R. White:

–take the whole mountain away and since… and have it–

J. Marshall Coleman:

Dump it down the hill.

Byron R. White:

–And develop your land that way?

Rather than taking the coal out first?

J. Marshall Coleman:

That’s correct, Your Honor.

But if you take the coal out first you’re prohibited for a period of five years from putting that land to its only economical use, which is a flat land on which a school or a hospital or a shopping center or an industrial development can be constructed.

Byron R. White:

Well, what… the only taking there can possibly be, then, I suppose, is in the sense that it forbids you from taking the coal?

Because you could now go ahead and flatten the land and build a school or a factory on it without mining it.

J. Marshall Coleman:

It would be very expensive to do that if you weren’t going to get paid for getting the coal out first.

Byron R. White:

Oh, I know, but if you believe your allegation that if you flatten the land it’s of great value?

J. Marshall Coleman:

That’s right.

Byron R. White:

Which you do say so.

J. Marshall Coleman:

That’s right.

Byron R. White:

I suppose you wouldn’t need to mine it to have it be of value if you flattened it?

J. Marshall Coleman:

But I think that the Court recognizes still that one of the important factors in taking is the diminution of value.

Obviously the diminution of value is pretty large if you’ve got valuable coal in your mountain and you can’t take it out because you can’t afford to put it back–

Byron R. White:

Well, I take it that you would say that either under the Tenth Amendment or under the Fifth or both, the Federal Government could not forbid–

J. Marshall Coleman:

–That’s right.

Byron R. White:

–The strip mining of this land, just flat.

Just an outright ban on strip mining?

J. Marshall Coleman:

I would guess that it could.

No… I agree with you.

Mr. Chief Justice, thank you very much.

Warren E. Burger:

You have four minutes remaining.

Do you wish to exercise that as rebuttal in this case?

Peter Buscemi:

Mr. Chief Justice, I’d like to say just a couple of things in connection with this Tenth Amendment Commerce Clause argument.

First of all, this is not a zoning statute in the way that expression is ordinarily used.

This is not an attempt by the Federal Government to change the communities’ maps in the State of Virginia.

William H. Rehnquist:

What about the prime farmland regulation?

Peter Buscemi:

Well, that is in the next case, Mr. Justice Rehnquist, but I will say that, again, there is nothing in the prime farmland regulations that attempts to tell a local community how to use its land or what areas are to be used for residential purposes or commercial purpose or anything.

All of this goes only to surface mining.

And moreover it’s not a prohibition on surface mining.

It’s just a statutory provision that says that if you’re going to surface mine, you’ve got to do it in this way, and you’ve got to restore the land so you don’t cause damage.

Byron R. White:

Yes, but it does say that if a state wants to permit, or private owners want to strip mine and then use it for something besides farmland, the Federal Government says you may not do that, at least without first making it back into farmland.

Peter Buscemi:

That’s correct, Mr. Justice White.

And the purpose of that is to preserve the productive capacity of the farmland.

William J. Brennan, Jr.:

And is it, as the Attorney General suggested, is there a five year hiatus?

Peter Buscemi:

Well, the bond, the full amount of the bond, and if I understand Section 519 of the Act, is not released until after five years, but 60 percent of the bond is released in a much shorter time, as soon as the approximate original contour is restored.

I think Section 519 will make that quite clear.

And moreover, I do want to respond to this business about covering the high wall, because Mr. Coleman–

William J. Brennan, Jr.:

What’s the consequence?

Peter Buscemi:

–Oh, well, the consequence is that there’s only a small amount of the bond is retained for that full five-year period, and if the mine operator or the owner of the land believes that the financial–

William J. Brennan, Jr.:

What may the owner do within the five years?

Peter Buscemi:

–Oh, within the five years the owner may put the land back into a flattened state if necessary, if he wishes to do so, if the financial rewards are as great as they are supposed to be on the basis of–

William J. Brennan, Jr.:

Well, he puts it into a flattened state.

May he build on it within five years?

Peter Buscemi:

–Yes.

Yes.

Byron R. White:

By sacrificing his bond.

Peter Buscemi:

Perhaps, Mr. Justice White, by sacrificing part of the bond.

But this is how Mr. Justice Stewart’s question connects to yours, Mr. Justice Brennan.

There is nothing in the variance procedure that prohibits the covering of the high wall and still leaving of a substantial amount of flat benchland.

All Congress was trying to do with respect to covering the high wall is to prevent the open vertical face from still showing.

Once there is land that is placed back against that and sloped down and restabilized, flat benchland can still be left and still comply with that.

Now, there’s no–

Potter Stewart:

What’s benchland?

Peter Buscemi:

–Oh, benchland is the horizontal portion.

Potter Stewart:

So why not just call it flat land?

Peter Buscemi:

The word bench is designed to indicate that it’s up above, it’s on the mountainside.

Potter Stewart:

It’s a plateau?

Peter Buscemi:

Well, it’s the horizontal portion of the cut into the side of the mountain.

When the mountain started out it was just one straight line and then they cut out at the corner, as they go around the mountain.

And the flat part is called a bench.

Potter Stewart:

I get you.

Yes, but the Attorney General says that that’s just a piece of rock and you can’t put anything on it, it won’t stand that.

Peter Buscemi:

Well, Mr. Justice Marshall, I think that if you look at the pictures, for example, here in the committee reports, you will see that it has been done.

Pennsylvania and Ohio have both had statutes requiring this similar kind of restoration and it is practical, and Congress found that it was so.

John Paul Stevens:

This argument, would you just respond to this for me, because I’m still a little puzzled.

His argument, as I understand it, is that the slopes are so steep that if you pile the stuff back up against the wall there’s no room for a bench.

Peter Buscemi:

Mr. Justice Stevens, I think that that may well be his argument, but I think that Congress has found that that is not so, and I think that many of these benches are wide enough–

John Paul Stevens:

But didn’t the district court findings support what he says?

Peter Buscemi:

–The district court also said that compliance with the approximate original contour requirement was physically impossible.

But we know from the pictures in the legislative record that it’s not, because it’s been done.

It seems to me–

John Paul Stevens:

It’s been done in Ohio and Pennsylvania, and presumably the mountains there are just as steep as they are?

Peter Buscemi:

–Well, the State of West Virginia has had no problem in complying with this statute.

Peter Buscemi:

They have in fact submitted an acceptable program to the Secretary which has just been approved, and I think that the topographical conditions there are very similar to what they are in the western district of–

Thurgood Marshall:

Well, where… are the rocks in Pennsylvania different from the rocks in Virginia?

Peter Buscemi:

–I don’t think they are.

Thurgood Marshall:

I don’t think we’re going to be able to solve this problem.

One last question.

Do you rely on the variance as necessary to support this application of the statute in Virginia?

Peter Buscemi:

I would say not, Mr. Justice Stevens, but it is in the statute, and so we’re telling you about it.

But I don’t think it’s absolutely necessary.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

This case is submitted.