Kentucky and Pennsylvania (where declarants reside) in their regulatory programs, as approved in 1982. NWF points out that state programs were approved as no less stringent than the federal program in 1982; therefore, under NWF's interpretation of the regulatory history, these states applied section 522(e) to subsidence. In addition, NWF notes, Kentucky has a requirement that its regulations be no more stringent than the federal program; therefore, any action that the Secretary takes will also be taken in Kentucky.
NWF has identified a declarant, a member of the National Wildlife Federation, Kentuckians for the Commonwealth and Kentucky Resources Council, who lives in Kentucky and who regularly uses and enjoys areas of the Daniel Boone National Forest for "hiking, camping, fishing, and aesthetic enjoyment of the natural beauty of the forest."
See Declaration of Charles H. Bennett. Two companies are operating underground mining in areas in which Mr. Bennett has hiked and intends to hike in the future.
Mr. Bennett alleges that he is personally threatened with physical, recreational, and aesthetic injury from adverse surface impacts of subsidence incident to the underground coal mines. The National Forest would be affected by the Secretary's actions; thus, if the NOI has caused, or will cause, any injuries in Kentucky, they could be redressed through this suit. See NWF, 839 F.2d at 708. (federal government enforces surface mining standards on federal lands).
Both the Secretary and Industry contend that NWF's declarations merely prove that the NOI did not change the status quo. In reference to Mr. Winegar's affidavit, Industry points out that if the Secretary had previously interpreted section 522(e)(5), which prohibits surface coal mining operations "within three hundred feet from any occupied dwelling," to apply to subsidence, the permit covering the alleged longwall operation could not have been issued because it would allow mining within 75 feet of Mr. Winegar's house. Moreover, the Secretary contends, many of the declarants' concerns are already addressed in the regulations. For example, regulations dealing with threatened subsidence damage to public roads require that appropriate measures "be used to ensure that the interests of the public and landowners affected are protected." 30 C.F.R. § 784.18. Thus, any road damage would not be attributable to any action of the Federal respondents challenged in this suit, the Secretary argues; any damage would have been caused by a failure on the part of the regulatory authority to impose appropriate restrictions or by an operator's failure to obey those restrictions. A court may only redress injury "that can be traced to the challenged action of the defendant." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976).
The Secretary and the intervenor-defendants' arguments are unavailing, however. In the face of similar arguments, the NWF Court rejected Industry's claim that the existence of other regulations imposing "protective conditions" limited possible harm stemming from the new regulations. The Court found this argument went not to standing but to the substantive validity of the new regulations at issue there. See NWF v. Hodel, 839 F.2d at 713. Likewise, whether other regulations address NWF's allegations of harm or whether the Secretary's issuance of the NOI in fact changed the status quo goes to the merits of the case, not to the standing issue. Cf. id. at 714 ("the permissibility of that policy change is an issue we address on the merits, not in the context of standing.").
For the foregoing reasons, the threat to NWF's members are sufficiently real and immediate to show an existing controversy and therefore NWF has standing to challenge the NOI. See id. at 709, citing Blum v. Yaretsky, 457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982).
III. Whether the NOI is substantively and procedurally valid
In determining questions of statutory interpretation, the Court must address the threshold question of "whether Congress has directly spoken to the issue." Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). If Congress' intent on the precise question is clear, the Court must give effect to that intent. Id. at 843 n.9. The parties agree that Congress' intent is clear and that the Court need not proceed to the second step of Chevron. See id. at 843 n.9 ("If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is law and must be given effect."). What Congress' intent is, though, is the subject of disagreement.
However, the Court will not address the merits of whether the Secretary's determination that subsidence is not prohibited by section 522(e) is substantively valid, either under the first or second step of Chevron. After reviewing the record and the parties' arguments, the Court finds that the NOI, as a legislative rule, was not properly promulgated pursuant to the notice and comment requirements of the APA. Therefore, the NOI will be vacated and remanded to the Secretary for further rulemaking in accordance with the procedural requirements of the APA.
A. The NOI is a legislative rule
As the Secretary concedes, the NOI is a rule under the APA definition. See discussion supra. The APA requires that prior to the promulgation of a rule, general "notice of proposed rulemaking shall be published in the Federal Register" and "the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments." 5 U.S.C. § 553. Notice and comment can be dispensed with if the agency can make the strong showing necessary to establish that its rule fits within one of the section 553(b) exemptions. Action on Smoking and Health v. CAB, 230 U.S. App. D.C. 1, 713 F.2d 795, 800 (D.C. Cir. 1983). In this case, the Secretary is arguing that the NOI is an "interpretative" rule and thus exempt from the notice and comment requirement.
The Secretary contends that the NOI is an interpretative rule because it created no laws, rights or duties, and did not alter the current regulatory program. For example, the Secretary notes, the NOI is consistent with the regulatory definition of "surface coal mining operations" in 30 C.F.R. § 700.5; with the definition of "surface operations and impacts" in 30 C.F.R. § 761.5; with 30 C.F.R. § 761.11(e)-(g), where the buffer zone is measured horizontally; and with the fact that only surface areas affected by surface activities need to be permitted. See 30 C.F.R. § 701.5 (defining "permit area" and "adjacent area"). Because the validity of the Secretary's position as set forth in the NOI depends solely on whether the agency has correctly interpreted congressional intent and specific statutory provisions, the Secretary argues, the NOI is an interpretative rule. The NOI "simply states what the administrative agency thinks the statute means." General Motors Corp. v. Ruckelshaus, 239 U.S. App. D.C. 408, 742 F.2d 1561, 1565 (D.C. Cir. 1984), cert. denied, 471 U.S. 1074, 85 L. Ed. 2d 509, 105 S. Ct. 2153 (1985).
NWF argues that the precedent established in an earlier case, where this Court held that notice and comment was required under section 553 of the APA for a regulation addressing the term "valid existing rights" found in section 522(e), controls. See In re Permanent Surface Mining Regulation Litigation, 22 Env't Rep. (BNA) 1557, 1559-60 (D.D.C. 1985) (the VER definition embodied in § 761.5(a) of the rule as finally promulgated is a legislative rule subject to notice and comment) (PSMRL). Given the Secretary's authority to approve or disapprove state programs as set forth in section 503(a) of the SMCRA and his ability to provide for Federal enforcement where a state program is not properly enforcing the program, the Court found that the regulations defining VER were legislative rules, not merely advisory ones. Id.
The Secretary and the intervenor-defendants argue that the NOI is not analogous to the rulemaking for VER. In that rulemaking, Congress chose not to define the term VER as used in section 522(e), but left it to the agency to spell out the term either by rulemaking or by adjudication; therefore, the Secretary argues, a regulatory definition of VER would be legislative. By contrast, the issue of whether the prohibitions of section 522(e) apply to subsidence, the Secretary contends, is solely a matter of statutory interpretation or construction, i.e., whether subsidence is included in the definition of "surface coal mining operations," which is defined at section 701(28). Also in the VER rulemaking, the Secretary was attempting to alter a regulatory definition of VER that had been codified. The regulatory definition of "surface coal mining operations" essentially tracks the language of the SMCRA and has been unchanged since 1979, the Secretary contends.
What the Secretary's argument ignores, however, is that while the term "surface coal mining operations" was defined in the statute, the terms "surface impacts incident to an underground coal mine" and "areas upon which such activities disturb the natural land surface," as they appear in section 701(28)(A) and (B), are not defined in the statute See 53 Fed. Reg. at 52,380. In addition, there is no regulatory definition for the term "surface operations and surface impacts incident to an underground coal mine."
Id. at 52,381. Indeed, during the 1988 proposed rulemaking the Secretary invoked his discretion to define these terms and proposed two rule options, each of which defined subsidence in varying degrees as a surface coal mining operation.
The Secretary's rationale in describing why the VER case required a rulemaking would therefore seem to apply here as well. As the Secretary concedes, Congress apparently left it to the agency to define the terms "surface impacts incident to an underground coal mine" and "areas upon which such activities disturb the natural land surface" just as Congress left it to the agency to define the term VER. The Secretary relied on this delegation in promulgating the proposed rules, Although he withdrew the proposal, the Secretary in essence promulgated a definition of the undefined terms by determining that subsidence was not included in those terms, even though there were no changes in the regulations. Given his actions and his rationale for the VER rulemaking, he cannot now argue that there was no delegation of authority to determine that section 522(e) did not apply to subsidence.
NWF also argues that the NOI is a legislative rule because it "binds" the Secretary in any future actions. A recent decision of the Court of Appeals for the D.C. Circuit illuminates the distinction between legislative and interpretative rules and provides a useful road map for courts in making these types of determinations. See American Mining Congress and National Industrial Sand Association v. Mine Safety and Health Adm., 302 U.S. App. D.C. 38, 995 F.2d 1106 (D.C. Cir. 1993) ("AMC"). In particular, the AMC Court notes that in deciding whether a rule is interpretative or legislative, "restricting discretion tells one little about whether a rule is interpretive." Id. at 1111 (citations omitted). Instead, the Court formulates a four-factor test for identifying a legislative as opposed to an interpretative rule, the crucial inquiry being whether the rule has "legal effect." Id. at 1112. The four factors are whether
(1) in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule. If the answer to any of these questions is affirmative, we have a legislative, not an interpretive rule.