The full U.S. Court of Appeals yesterday vacated an earlier appeals court ruling that struck down rules designed to regulate strip miners and said it will rehear the case this year.
In a 2-to-1 decision in July, an appeals court panel had said that the secretary of the Interior had no authority to issue rules that would have required strip-mining operators to provide the government with detailed information about their work.
In an opinion for the majority, Judge Edward Tamm said that the 1977 Surface Mining Control and Reclamation Act did not give the secretary power to expand the regulations beyond the general requirements of the act itself.
Tamm was joined in the decision by Judge George McKinnon. They concluded that Congress had intended that the state have principal decision-making and regulatory power in connection with the act and that the secretary's role pertain to oversight.
From that, the majority concluded that Congress did not intend that the secretary step beyond minimum requirements set out in 1977 act.
U.S. District Judge Harold H. Green, sitting on the appeals courts by designation, said in a dessent that he would have upheld an earlier ruling by U.S. District Judge Thomas Flannery, who ruled that the secretary had acted within his power. Green said the appeals court in effect had accomplished what Congress earlier had been unable to do -- void those regulations of the act that would have required strict accountability by the states.
Last Friday the Senate approval legislation that would give the states more authority in developing plans for restoration of land around abandoned strip mines. The bill would permit states largely to ignore federal regulations.
The push for the bill was led by Sen. Robert C. Byrd (D-W.Va.), who had leveled criticism against "overbearing" federal regulators and "bureaucratic bramble makers." Opponents expect that the bill will be stopped in the House, however.
In an unsigned order yesterday, the full appeals court agreed with the federal government's suggestion that it rehear the case.
The order issued yesterday noted that circuit judges Tamm and McKinnon -- who originally heard the case -- and judges Roger Robb and Malcolm R. Wilkey would deny the government's suggestion for a rehearing by the full court. Judge Carl McGowan did not participate in yesterday's decision.