In Re Permanent Surface Mining Regulation Litigation. Appeal of Peabody Coal Company

*528TAMM, Circuit Judge,

dissenting:

We are confronted in this case with interpreting an act of Congress whose linguistic excesses make its exact meaning seemingly difficult to ascertain. Those difficulties impel my brethren of the majority, however, to lose sight of the congressional objective. I believe that it is not necessary to rely on remote inferences to ascertain the obvious design of the legislation. It is not necessary to draw upon a legal stamp collection, to utilize ideological mutations, or to create a legal “bodyguard of definitions, conclusions, corollaries, propositions explicit and propositions implicit” 1 to determine the intent of the Congress and the purpose of the Act. No amount of legal acrobacy can dispel the actual wording of the statute in placing prime responsibility in the states for primarily programming the coal mining regulations. In the hope that the reasoning set out hereafter will magnetize legal scholars to a true appreciation of the law as Congress actually intended it to be, I set out my interpretation of the statute under consideration. In some areas I shall be required to enter already well plowed fields.

In this appeal from a partial final judgment of the United States District Court for the District of Columbia, we must determine whether the Secretary of the Interior may prescribe minimum requirements for coal-mining permit applications that states must adopt before they can assume authority for regulating coal mining within their borders pursuant to the Surface Mining Control and Reclamation Act of 1977 (Surface Mining Act or Act), 30 U.S.C. §§ 1201-1328 (Supp. I 1977). I conclude that the Secretary lacks the power to demand that states require applicants to provide more information than that specified in sections 507 and 508 of the Act, 30 U.S.C. §§ 1257-1258. Therefore, I would reverse the judgment of the district court and remand the case with instructions to remand the regulations at issue to the Secretary.

I.

Congress adopted the Surface Mining Act in an effort to balance the need for coal in satisfying the nation’s energy requirements against the environmental dangers posed by mining operations. See Act § 102, 30 U.S.C. § 1202. Congress also concluded that “because of the diversity in terrain, climate, biologic, chemical, and other physical conditions, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States . . . . ” Id. § 101(f), 30 U.S.C. § 1201(f). Congress carefully devised a statutory scheme that would take all these concerns into account. As we recently noted:

The Act provides a truly federalist distribution of regulatory authority for the coal-mining industry. After a transition period of direct regulation under the Secretary of the Interior, each state in which coal is mined has the option of submitting to the Secretary its own program for supervising mining and reclamation within its borders. Act § 503, 30 U.S.C. § 1253. The Secretary, after following certain procedures, must approve the program if he finds it adequate to protect environmental concerns that lay behind the adoption of the Act. Once its plan is approved, the state assumes responsibility for enforcing the Act. Id. If a state fails to submit a satisfactory program, or if it does not wish to assume jurisdiction over mining within its borders, the Secretary must devise a program for that state suited to its particular needs. Id. § 504(a), 30 U.S.C. § 1254(a). Whether regulation is in federal or state hands, a firm wishing to engage in surface mining must obtain a permit from the regulatory authority before it may begin or continue its operations. Id. § 506(a), 30 U.S.C. § 1256(a). The Act spells out in detail the minimum information that an applicant must submit to the regulatory authority to accompany its permit request. See id. § 507(b), 30 U.S.C. § 1257(b).

*529In re Permanent Surface Mining Regulation Litigation, 617 F.2d 807, 808 (D.C.Cir. 1980) (per curiam) (appeal from denial of preliminary injunction).

In March of 1979, the Secretary issued permanent regulations under the Act. See 44 Fed.Reg. 14902, 15312-463 (1979) (codified at 30 C.F.R. pts. 700-890 (1979).2 Among these rules are specifications for the minimum information that a state must require in a permit application before the Secretary will approve the state’s program and allow it to assume control of mining within its borders. See 30 C.F.R. pts. 778-784. These requirements are much more detailed than the information the Act itself prescribes for applicants to submit to the appropriate regulatory authority. Compare id. with Act §§ 507-508, 30 U.S.C. §§ 1257-1258.3

Various mining states, firms, and trade associations filed a total of nine actions in the United States District Court for the District of Columbia challenging most aspects of the Secretary’s permanent regulations, including the information requirements. The district court consolidated these cases and divided the issues involved into two groups, one involving statutory and other general questions and the other involving disputes on the record. The court then refused to enter a preliminary injunction against enforcement of the permit application rules. On appeal, this court affirmed the denial of interim relief as being within the district judge’s discretion. In re Permanent Surface Mining Regulation Litigation, 617 F.2d 807 (D.C.Cir.1980) (per curiam), aff’g Civ.No. 79-1144 (D.D.C. Aug. 21,1979) (order denying preliminary injunction). In the process, we stated that we were intimating no view on the merits of those appellants’ claims. Id. at 809.

Since our January opinion, the district court has reached its decision on the first group of issues. As part of its opinion, the district court concluded that “the structure of the Act, the general grants of rulemaking authority, and Section 501(b) support the Secretary’s power” to promulgate minimum requirements for permit applications under state programs that exceed the information required under the Act. In re Permanent Surface Mining Regulation Litigation, Civ.No. 79-1144, at 31 (D.D.C. Feb. 26, 1980) (memorandum and order), [hereinafter cited as District Court Opinion].4 See generally id. at 30-33. On the motion of Peabody Coal Company, the district court found no just reason to delay entering judgment on this issue and, on March 17, entered a final judgment on the validity of these rules. See generally Fed.R.Civ.P. 54(b). Peabody, a party to the earlier appeal regarding the preliminary injunction, filed this appeal. To ensure a prompt dis*530position of the significant question presented, this court granted expedited consideration before the division of the court which heard the appeal concerning preliminary relief.

II.

A.

I begin my effort to construe the Secretary’s powers under the Surface Mining Act by examining the language of the Act itself. See, e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976); Zerilli v. Evening News Association, 628 F.2d 217 (D.C.Cir.1980). The Secretary relies primarily on two provisions to demonstrate that Congress granted him authority to issue minimum standards for state permit applications. I do not believe these sections are so clear as the Secretary contends.

The first of the two provisions, section 201(c)(2), authorizes the Secretary to “publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act . . . . ” 30 U.S.C. § 1211(c)(2). The Secretary asserts that this clause is a grant of general rulemaking power that enables him to impose additional information requirements for permit applications. I have two problems with this analysis. First, section 201(c)(2) itself states that the regulations must “be necessary to carry out the purposes and provisions of this Act . . . . ” This language still begs the question of whether prescribing additional information requirements for states to demand in permit applications is consistent with the Act. I am thus left precisely where I began. Second, I am not satisfied with either party’s invocation of the long-standing canon of statutory construction that an act’s provisions should be read so as to render none superfluous. See generally 2A Sutherland Statutory Construction § 46.06 (4th ed. C. Sands 1973). Peabody initially argued that reading section 201(c)(2) as a grant of general rulemaking authority makes the twenty specific grants in the Act meaningless. The district court turned this proposition around to hold that reading section 201(cX2) otherwise makes it superfluous. See District Court Opinion at 32. In short, any broad reading of the Act’s rulemaking provisions will make section 201(c)(2) redundant of the specific grants or vice versa. I cannot base a decision on a method of statutory construction that, when applied to this Act, is so hopelessly circular. Cf. American Radio Relay League, Inc. v. FCC, 617 F.2d 875, 879 (D.C.Cir.1980) (courts will not give independent meaning to a word that, in context, appears to be simply surplusage).

Section 501(b) of the Act gives me more pause. It empowers the Secretary to “promulgate and publish ... regulations . . . establishing procedures and requirements for preparation, submission, and approval of State programs .... ” 30 U.S.C. § 1251(b) (emphasis added). This language can be read to allow regulations detailing minimum standards that all state programs must meet to receive the Secretary’s approval. Equally plausible, however, is a construction that allows these requirements to pertain only to areas in which the Act otherwise allows the Secretary to set nationwide performance standards for states to enforce. See Act §§ 515-516, 30 U.S.C. §§ 1265-1266.5 Alternatively, section 501(b) could pertain only to nonsubstantive requirements for processing state programs through the Secretary’s office. In any event, the language of the statute “is hardly free from ambiguity, and there is no clear literal meaning that we are bound to give effect.” United States v. Davis, 617 F.2d 677 (D.C.Cir.1979).6

*531B.

I next turn to the Act’s legislative history in the hope that it will shed some light on the statute’s words. Unfortunately, this, too, is a blind alley. The Senate report, the House report, the conference report, and the floor debate are all silent on whether the Secretary may add application specifications beyond those enacted in sections 507 and 508.

The Secretary at one point refers us to the House report’s discussion of section 501(b). This passage states, in full: “Subsection (b) gives the Secretary up to 1 year to promulgate regulations to implement the full regulatory program including technical requirements, permits process[es], and procedures for submission of State programs.” H.R.Rep.No.95-218, 95th Cong., 1st Sess. 62 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 593, 601. Once again, I do not believe this language is clear at all. The single sentence appears in a short summary of section 501 and simply describes section 501(b) as giving the Secretary rulemaking power for the “full regulatory program,” then lists specific examples. It does not purport to define what the “full regulatory program” and its limits are. To determine what the Secretary may do in relation to “technical requirements, permit processes], and procedures for submission of State programs,” as well as other areas, one still must turn to the substantive provisions of the Act that allocate authority between the Secretary and state regulatory agencies. The Secretary, the parties agree, is empowered to establish technical performance standards.7 Likewise, he clearly has full control over the permitting process in two instances: mining on federal land, see Act § 523,30 U.S.C. § 1273, and mining in states that do not submit satisfactory regulatory programs, see id. § 504, 30 U.S.C. § 1254. I still must decide how much further his authority over the permitting process extends — in particular, how control over permitting is allocated between the Secretary and the state regulatory authority when the state wishes to assume responsibility for mining within its borders.

III.

With no clear meaning arising from the language of the Act itself or Congress’s discussion of it, I must now look broadly at the Act’s purposes and structure to decide which approach is more faithful to Congress’s overall design. See, e. g., United States v. Bornstein, 423 U.S. 303, 310, 96 S.Ct. 523, 528, 46 L.Ed.2d 514 (1976). My examination indicates that Congress intended to vest in the states primary regulatory and decisionmaking authority and to place the Secretary in an oversight role to ensure that the states provide some minimal level of regulation and control. From there, I conclude that the Act itself defines the minimum information permit applications must contain and that the Secretary’s authority in this area is limited to determining whether the states have satisfied that minimum. With this understanding, I would hold that the Secretary lacks power to demand that states require more information from applicants than the Act itself spells out.

A.

Congress listed among the purposes of the Act a desire to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations . . . . ” Act § 102(a), 30 U.S.C. § 1202(a). It nonetheless found *532that due to variations in local conditions, “primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States.... ” Id. § 101(f), 30 U.S.C. § 1201(f) (emphasis added). The federal government, of course, “assist[s] the States in the development of State programs for surface coal mining and reclamation operations which meet the requirements of the Act, and at the same time, reflect local requirements and local environmental and agricultural conditions. .. .” Id. § 201(c)(9), 30 U.S.C. § 1211(c)(9) (emphasis added). Accord, id. § 102(g), 30 U.S.C. § 1202(g). The overall structure thus is one in which the Act will “be enforced by the State[s] with backup authority in the Department of the Interi- or.” H.R.Rep.No.95-218, supra at 57, reprinted in [1977] U.S.Code Cong. & Ad. News at 595 (emphasis added). See id. at 129 (“primary regulatory authority” delegated to states with “a limited Federal oversight role” in the enforcement program), reprinted in [1977] U.S.Code Cong. & Ad.News at 661.

The Act’s allocation of authority reflects these aims. Under an approved state program, the local regulatory authority decides whether to issue permits for coal mining. Act § 510, 30 U.S.C. § 1260. The state authority must operate within certain boundaries prescribed by the Act, and its determination whether to grant a permit request is reviewable in state courts, id. § 526(e), 30 U.S.C. § 1276(e), but the Secretary is not involved in this process.8 Only if the state authorities subsequently fail to enforce their local program may the Secretary assume control of mining within that state, and he may do so then only after following certain procedures in which the state participates. Id. § 521(b), 30 U.S.C. § 1271(b). This scheme leaves broad discretion in state officials while ensuring, through federal oversight, that the minimum requirements of the Act are achieved.9

B.

Ordinarily, logic dictates that the entity vested with the power to make a given decision implicitly is left with the power to determine what information it needs to make that decision. In the case of state regulatory authorities, however, Congress wished to make sure that the permit-granting entities would have adequate information:

Experience has shown that without a thorough and comprehensive data base presented with the permit application, and absent analysis and review by both the agency and by other affected parties based upon adequate data, [this] judgment has often traditionally reflected the economic interest in expanding a State’s mining industry. Valid environmental factors tend to receive short shrift. To meet this problem the bill delineates in detail the type of information required in permit applications in sections 507 and 508 and the criteria for assessing the merits of the application in section 510.

H.R.Rep.No.95-218, supra at 91, reprinted in [1977] U.S.Code Cong. & Ad.News at 627 (emphasis added). These informational specifications are the “minimum uniform *533requirements” that all states must demand of permit applicants. S.Rep.No.95-128, 95th Cong., 1st Sess. 53 (1977).

That Congress chose to mandate a minimum amount of information in permit applications does not mean that it intended to give the Secretary the power to require even more information when he is not the permit-granting authority. Indeed, in a system that, as one of its central goals, vests “primary governmental responsibility” in the states, it is more reasonable to construe sections 507 and 508 as carefully devised exceptions to the general, commonsense proposition that the decisionmaker is in the best position to decide what information it needs. True, the Secretary is the federal official who approves state programs, but the power to approve or to reject state programs does not necessarily include the power to specify the criteria of decision. The Act goes into unusually great detail in stating what a permit application must contain.10 It also states in detail the factors that must be present before the Secretary may approve a proposed program. See Act § 503, 30 U.S.C. § 1253. A construction that would allow the Secretary to expand these requirements as he saw fit in effect would permit him, by regulation, to take away the very discretion Congress sought to vest in the states.11 Like the camel sticking his nose in the tent, the Secretary easily could take over entirely. I will not construe a statute “in a manner *534which runs counter to the broad goals which Congress intended it to effectuate.” FTC v. Fred Meyer, Inc., 390 U.S. 341, 349, 88 S.Ct. 904, 908, 19 L.Ed.2d 1222 (1968).

C.

My conclusion does not mean that the Secretary plays no role in the implementation of sections 507 and 508. On the contrary, under the Act, he must refuse to approve any particular state’s proposed program if it appears inadequate to obtain the information sections 507 and 508 require of applicants. The Secretary may issue interpretive rulings, if he so desires, clarifying what he believes individual provisions of these two sections mean. He also is free to recommend that state authorities adopt application requirements more stringent than those spelled out in the Act itself. Finally, if a state fails to abide by its responsibilities under the Act, the Secretary may enforce the Act against particular mines, see Act § 521(a)(2), 30 U.S.C. § 1271(a)(2), and, after following certain procedures, assume full authority for issuing and enforcing permits within that state, see id. § 521(b), 30 U.S.C. § 1271(b). Until such inadequate enforcement appears, however, the Secretary’s actual power to compel compliance with his wishes is limited to approving state programs based on the criteria set forth in the Act, see id. § 503, 30 U.S.C. § 1253, and to monitoring success through the federal inspection systems, see id. § 517, 30 U.S.C. § 1267.12

IV.

Congress intended states to assume the “primary governmental responsibility” for enforcing the Surface Mining Act. To ensure states would live up to this duty, the Secretary of the Interior was given certain supervisory power. We would turn Congress’s scheme on its head were we to allow that supervisory authority to consume state discretion and to reduce state power to a purely ministerial implementation of a federally devised program.

I realize, of course, that my construction of the Act is the product of a general view of the distribution of authority Congress was trying to strike. Neither the language of the statute itself nor its legislative history has given us a clear path to take. Senate activity concerning these provisions in the last Congress, see S. 1403, 96th Cong., 1st Sess., 125 Cong.Rec. S12350 (daily ed. Sept. 11, 1979),13 gives some consolation, however, for I assume that Congress will correct the majority decision if it disagrees or will change the scheme it enacted if it now believes another approach would be more satisfactory.

For the foregoing reasons, I would reverse the judgment of the district court and remand with instructions that the regulations be returned to the Secretary for further consideration in light of these views.

. Erasmus, as cited in A. Koestler, The Sleepwalkers (1959).

. Many of the parties to the present litigation in the district court also challenged the Secretary’s interim regulations promulgated under §§ 501-502 of the Act, 30 U.S.C. §§ 1251-1252. See In Re Surface Mining Regulation Litigation, 627 F.2d 1346 (D.C.Cir. 1980), affg in part, rev’g in part, and remanded 452 F.Supp. 327, 456 F.Supp. 1301 (D.D.C. 1978).

. Numerous provisions of the regulations go far beyond the language of §§ 507 and 508. For example, the rules specify that maps filed with a permit application must identify the uses of existing buildings and the location of roads, cemeteries and Indian burial grounds, park trails, and areas listed or eligible for listing in the National Register of Historic Places. 30 C.F.R. §§ 779.24(d), (h)-(k), 783.24(d), (h)(k). The Act does not require submission of this information. See Act § 507(b)(13), 30 U.S.C. § 1257(b)(13). Under the regulations, the applicant also must list all other permits needed to conduct the proposed mining activities and include in the list the name and address of the regulating authority, permit identification numbers, and the present status of these other permit applications. 30 C.F.R. §§ 778.19, 782.19. The applicant must describe existing structures and provide maps identifying the location of various buildings, facilities, and operational areas to be used in mining activities. Id. §§ 780.14, 784.14. The applicant’s reclamation plan must describe stream diversions, impacts on parks and historic places, road relocations, disposal of excess wastes, and transportation facilities. Id. §§ 780.29 — .38, 784.17 — .19, .22. The Act has no comparable provisions for any of the foregoing requirements either. See Act §§ 507-508. Likewise, the regulations specify in great detail what the blasting plan required under § 507(g), 30 U.S.C. § 1257(g), must include. 30 C.F.R. §§ 780.13, 784.13.

. For the text of § 501(b), 30 U.S.C. § 1251(b), see page 530 infra.

. Peabody, in its initial brief filed in conjunction with the appeal of the denial of preliminary relief, conceded that the Secretary may issue regulations establishing nationwide performance standards under §§ 515 and 516 of the Act, 30 U.S.C. §§ 1265-1266. See In re Permanent Surface Mining Regulation Litigation, 617 F.2d 807 (D.C.Cir.1980), Joint Brief of Appellants at 7, 19. I assume, but do not decide, that this construction is correct.

. The Secretary relies less heavily on two other provisions of the Act. The first is the requirement that states demonstrate they have “the *531capability of carrying out the provisions of this Act and meeting its purposes through ... (7) rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” Act § 503(a), 30 U.S.C. § 1253(a). The second defines “State program” as meaning “a program established by a State pursuant to section 503 ... in accord with the requirements of this Act and regulations issued by the Secretary pursuant to this Act . . . . ” Id. § 701(25), 30 U.S.C. § 1291(25). These clauses have the same problem of circularity I found with § 201(c)(2), as discussed in the text: the state must conform only to those regulations that are consistent with the Act, so we still must decide whether these particular regulations conform to the Act’s purposes.

. See note 5 supra.

. While the bill that became the Surface Mining Act was pending, Secretary of the Interior Cecil K. Andrus wrote to Representative Morris K. Udall, chairman of the House committee considering the bill, and asked in part that his Department be given authority to intervene in the permit process. See H.R.Rep.No.95-218, 95th Cong., 1st Sess. 156 (1977) (letter from Sec’y Andrus to Rep. Udall), reprinted in [1977] U.S.Code Cong. & Ad.News 593, 687. Congress apparently rejected this request.

. The Secretary insists that he has left this discretion intact through the so-called “state window” provision in the regulations. This section allows states to propose alternatives that are “consistent with the regulations” the Secretary has issued. 30 C.F.R. § 731.13(c)(1). The language of this provision, however, is deceptively comforting. Elsewhere, the regulations define “consistent with” as meaning “no less stringent than and meetpng] the applicable provisions of the regulations the Secretary has issued. Id. § 730.5(b). Thus, there is little room for states to maneuver. The “window” would be more accurately described as a one-way mirror.

. The requirements set out in more than a score of paragraphs in sections 507 and 508, 30 U.S.C. §§ 1257 & 1258 (Supp. I 1977), are indeed both extensive and detailed, listing with considerable particularity the necessary contents of each application and reclamation plan. This is not a case in which Congress outlined a scheme, leaving the details of its implementation to the Secretary. Instead, it is a case in which Congress, wanting to commit the substance of its compromise on the surface mining question to law, specified the details itself.

The majority rejects any inference based upon the “mere length or specificity” of sections 507 and 508 on the grounds that the legislative history of section 515, a longer and more detailed section, makes it clear that the Secretary’s regulations are expected to “flesh out” the statutory requirements. Majority opinion at 527. I believe that the different function served by section 515 makes any comparison irrelevant. That the Secretary’s expertise should be of some use in the formulation of environmental protection performance standards by no means dictates the conclusion that the Secretary should be able to tell the states what information to require on permit applications. See note 5 supra.

. The Secretary argues that his construction of the Act deserves considerable deference because his Department is the agency Congress has empowered to implement the Act. See, e. g., Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980). Despite this general rule, a court always remains free to reach its own conclusion concerning what a particular statute means. E. g., Skidmore v. Swift, 323 U.S. 134, 139-40, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). In deciding how much deference to pay an agency’s interpretation, a court must look in part to “the nature of [the agency’s] expertise.” Batterton v. Francis, 432 U.S. 416, 425 n.9, 97 S.Ct. 2399, 2405 n.9, 53 L.Ed.2d 448 (1977). In this case, the question of whether the Secretary may issue detailed regulations about what a permit application must contain is “a narrow legal issue that is readily susceptible of judicial resolution.” Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 120, 100 S.Ct. 2051, 2062, 64 L.Ed.2d 766 (1980). Moreover, the fundamental issue in the case before us is whether Congress intended to vest in the Secretary discretion over the contents of permit applications — in other words, whether Congress intended to give him the very discretion on which he now relies. Under these circumstances, I feel free to reach a decision based on my own independent analysis.

For similar reasons, I must reject the Secretary’s reliance on the Supreme Court’s decision in E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). In du Pont, the Court upheld the authority of the Administrator of the Environmental Protection Agency to set precise, industrywide standards for effluent emissions under § 301 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1311 (1976). Those regulations thus concerned the substantive performance standards, which Congress clearly authorized the Administrator to set. The regulations at issue in this appeal, however, do not relate to substantive environmental standards, over which I have assumed the Secretary has complete control, see page 518 and note 5 supra, but to information that the permit-granting authority requires for the application process. See note 10 supra. Furthermore, the language of the statute in du Pont was far clearer in authorizing the Administrator of EPA to set performance standards than is this Act concerning the Secretary of the Interior’s power over application requirements.

. Because I conclude that the regulations at issue violate the Act, I do not reach Peabody’s contention that the Act, if it did authorize the regulations, would violate the tenth amendment.

. This bill in part would have deleted the language in § 503(a)(7) of the Act, 30 U.S.C. § 1253(a)(7), that state laws and regulations must conform with the Secretary’s regulations. The bill passed the Senate on September 11, 1979. See 125 Cong.Rec. S12387 (daily ed. Sept. 11, 1979). It was referred to the House Committee on Interior and Insular Affairs on September 13, 1979.