Proponents of funding for abandoned mine reclamation breathed a sigh of relief last week following a court decision which protected the government's ability to collect a reclamation fee on exported coal.

A number of coal operators had previously sued the U.S. government to discontinue the collection of the abandoned mine reclamation fee on coal produced in the U.S. then exported. Based on an argument that the fee was unconstitutional as applied to exported coal, the coal operators were successful in a lower court decision that agreed with their argument. The U.S. government appealed the decision to federal appeals court which last week overturned the lower court's decision, in essence preserving the ability to collect the fee.

The fee itself supports reclamation efforts to fix coal mining problems that were created before the enactment of adequate environmental laws prescribing environmental standards. Currently assessed at 31.5 cents per ton for surface mined coal and 13.5 cents per ton on deep mined coal, the abandoned mine reclamation fee is distributed to coal mining states to fix health and safety problems on abandoned mine lands and remediate streams and rivers degraded by acid mine drainage. Pennsylvania has the dubious distinction of having far more problems from the days of unregulated coal mining than any other state, with about a quarter of a million acres of abandoned mine lands and over 5,000 miles of polluted streams.

In December 2006, Congress reauthorized the Surface Mining Control and Reclamation Act (SMCRA) to, among other things, continue the collection of the reclamation fee through 2021. Optimistically, as much as $1.4 billion will be returned to Pennsylvania derived from reclamation fees with the express purpose of addressing abandoned mine problems. While significant and as good as Pennsylvania could have pragmatically hoped for from the SMCRA legislation, this figure falls far short of a daunting estimate of $15 billion needed to fully address the legacy of unregulated coal mining.

Currently something over 4 percent of the coal mined in the U.S. is exported. Had the court decided in favor of the coal operators, the cessation (and possible refunding) of reclamation fees on exported coal would have eroded already inadequate reclamation funding, thus reducing Pennsylvania's share of reclamation funding by tens of millions of dollars over the lifetime of the reauthorized SMCRA.

The appellate court's decision was based solely on the interpretation of the language of the law. In particular, that a reclamation fee is imposed upon "coal produced" in the United States. The court's decision came down to the meaning of "coal produced" as used in SMCRA.

The following is a fairly readable excerpt from the court's decision--

If "coal produced" refers solely to coal extracted then the disputed portion of the statute does not render the statute unconstitutional under the Export Clause. If, however, "coal produced" is interpreted to include the entire process of extracting and selling coal - if it is a tax on extraction and sale - then, as it applies to sales that occur in the export process, it is an unconstitutional violation of the Export Clause. .... Where a possible construction of a statute would render the statute unconstitutional, courts must construe the statute "to avoid such problems unless such construction is plainly contrary to the intent of Congress. ... This canon of constitutional avoidance is subject only to the qualification that the interpretation that "save a statute from unconstitutionality" must be reasonable-that is, the saving construction must not be "plainly contrary to the intent of Congress” ... "The elementary rule is that every reasonable construction must be resorted to, in order to save the statute from unconstitutionality.

Our interpretation of the interpretation is court was obligated to choose the only alternative that would have preserved the constitutionality of the portion of SMCRA in question, that coal production only meant coal extraction, thus allowing the imposition of a reclamation fee.

Even though the decision was based on "a fine point", it does represent a victory for abandoned mine reclamation. However, it may not be over yet. This case may include another level of appeal.

(Written By Bruce Golden, Regional Coordinator, Western Pennsylvania Coalition for Abandoned Mine Reclamation)

Link: Abandoned Mine Posts By WPCAMR

6/27/2008