Pennsylvania\u27s Implementation of the Surface Mining Control and Reclamation Act: An Assessment of How Cooperative Federalism Can Make State Regulatory Programs More Effective

This Article first explains the background against which Pennsylvania\u27s implementation of SMCRA has occurred. Coal mining has had a serious and continuing effect on the State\u27s environment, as Part I explains. In response to these effects, Pennsylvania began to regulate coal mining many decades ago. This regulatory development reached a milestone when the State achieved primacy under SMCRA in 1982. Part II suggests that the new program in Pennsylvania has been responsible for substantial reductions in adverse environmental effects from surface coal mining, particularly less erosion and sedimentation, less acid mine drainage, and more backfilling. In addition, Part II explains that coal operators have been forced to change their planning and mining procedures because of the new program and that these changes have meant increased costs. At the same time, the primary factors affecting coal production appear to be related to diminished demand for coal. The remainder of the Article assesses why the program has improved, emphasizing those features of the federal scheme that have contributed the most to the effectiveness of the new program and many of those that still need to be fully implemented. Part III demonstrates that SMCRA has strengthened and enhanced a permitting process that was already fairly sophisticated when SMCRA was passed. Part III also explains that the new program contains a clearer and more complete set of performance standards than the old program. Part IV demonstrates that SMCRA has radically improved enforcement of the coal regulatory program, generally by structuring the State\u27s enforcement authority. In key ways, this enforcement program is an innovative hybrid of SMCRA requirements and preexisting state laws. An important feature of the new program, emphasized in Parts III and IV, is increased opportunities for citizen participation. Part V explains that SMCRA cost Pennsylvania its prior independence in program development but that program organization and the State\u27s personnel complement have become stronger and more sophisticated. Part V also argues that federal oversight has made a major contribution to the increased effectiveness of the new Pennsylvania program. Finally, because SMCRA allows states to implement more stringent and, to some extent, different provisions, Pennsylvania has been able to respond to the federal scheme in ways that enhance SMCRA\u27s protective features

Creating the Law of Environmentally Sustainable Economic Development

This article argues that a key to sustainability is redirecting the law of economic development. From a historical perspective, sustainable development is an effort to integrate environmental protection and restoration with development. As a result, it is not possible to fully understand sustainable development unless we understand what development means. While that term is reasonably well understood at the international level, our closest analogue in the United States is not development in general but rather economic development. A great many recently enacted laws that move the United States toward sustainability can be understood as economic development laws. By understanding these laws and their common characteristics, we may better understand how to move more rapidly and effectively toward sustainability

The Role of Trust Law Principles in Defining Public Trust Duties for Natural Resources

Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does not fully answer, trustees, lawyers, and courts often look to trust law for help. In fact, they have been doing so for more than a century, including in the U.S. Supreme Court’s landmark 1892 public trust decision, Illinois Central Railroad Co. v Illinois. In this sense, trust law provides a set of background or underlying principles for interpreting and applying public trusts. Using cases from around the country, this Article sets out a four-step methodology for determining when and how to use trust law principles to help interpret public trusts. This methodology can be applied in any case involving the use of specific trust principles to help interpret any particular public trust. This Article also explains that the relevant trust law should not be limited to private trust law, but rather it should include general trust principles, charitable trust law principles, and private (or noncharitable) trust law principles. This Article uses a 2019 Commonwealth Court of Pennsylvania decision, Pennsylvania Environmental Defense Foundation v. Commonwealth, as a case study. The case applies article I, section 27 of the Pennsylvania Constitution, which requires that public natural resources be conserved and maintained for the benefit of present and future generations. In that case, the court used an interpretation of private trust law to decide that the state could spend some bonus and rental payment money from oil and gas leasing on state forest and park land, which is constitutional public trust property, for non-trust purposes. This Article applies the four-part methodology to the case, explains general trust law and charitable trust law principles that the Commonwealth Court of Pennsylvania did not address, and argues that the use of these principles better fits the constitutional public trust. It concludes that the money from bonus and rental payments should be spent entirely for the purposes of the trust. This Article draws attention to both the potential value of trust law principles and also to their potential danger in the interpretation and application of public trust laws for natural resources. Trust law has the potential to enhance the protectiveness of public trusts by imposing various fiduciary duties on trustees. It also has the potential to undermine public trusts, particularly through rules requiring or encouraging that trust assets be financially productive. To vindicate public trusts for natural resources, environmental and natural resources lawyers need to become better trust lawyers

Legislative Notes: Metallic Mining and Reclamation in Michigan: Environmental Management as a Gentler Approach

A great deal has been said and written about the need for meaningful reclamation requirements for the surface mining of coal. Nonetheless, little attention has been given to the large quantity of land disturbed by mining for other minerals. Thirty-eight states have laws dealing directly with reclamation from a wide variety of mining operations . For purposes of this note, reclamation refers to those measures taken concurrently with or after the mining operation to reduce or repair the adverse effects of the operation on disrupted land . Environmental management is a much broader term which encompasses the full range of environmental protection measures involved with the decision to mine, the location and design of the operation, and the performance standards for various environmental impacts of the operation including, but not limited to, the reclamation requirements. Although little coal is mined in Michigan, the state\u27s mining industry extracts a wide variety of minerals including iron ore, copper, sand and gravel, gypsum, and sulfur. This note will scrutinize the recently enacted Michigan Mine Reclamation Act as it pertains to metallic mining, the largest of these industries. It will examine the disturbances associated with iron and copper mining, outline the weaknesses of the Mine Reclamation Act, and propose certain changes to improve that Act. This note will also attempt to demonstrate that comprehensive environmental management of land disturbances from metallic mining operations is a desirable approach to problems usually dealt with by reclamation laws