Subsidence in SMCRA § 522(e) Areas

On February 23, 2004, the Supreme Court quietly closed the door on a long-festering controversy that has threatened underground coal mining, especially longwall mining, since the early days of the Surface Mining Control and Reclamation Act of 1977. On February 23, the Supreme Court rejected the petition for certiorari filed by a coalition of environmental groups under the leadership of the Citizens Coal Council, seeking to have the High Court reverse the Citizens Coal Council v. Norton decision of the United States Court of Appeals for the District of Columbia Circuit last June in favor of the coal industry. In the D.C. Circuit's decision, the court upheld the Interior Department's regulation interpreting SMCRA to allow subsidence from underground coal mining to occur in areas where surface coal mining operations are prohibited by statute: within 100 feet of public roads or cemeteries, within 300 feet of occupied dwellings, public buildings, schools, churches, community or other institutional buildings, public parks, near places included or eligible for listing on the National Register of Historic Places, or within National Parks, Wildlife Refuges, Wilderness Areas and similar protected areas.

The battle had been fought on and off in the rulemaking arena, on Capitol Hill, in the coal mining states, and in the federal courts for over 25 years. Despite the many skirmishes over the years, the decision of the D.C. Circuit upholding the Interior Department's regulation as a reasonable interpretation of SMCRA is the first express and definitive determination that subsidence is not prohibited in these Section 522(e) areas, and is now final and unchallengeable, thanks to the Supreme Court's recent ruling. A major threat to the underground coal industry and to the Nation's energy supply is at last behind us.

[Editors' note: Crowell & Moring represented the National Coal Association, the American Mining Congress, and the National Mining Association in many of the key battles over this issue, including in the D.C. Circuit and the Supreme Court.]