If federal coal-mining funds dry up, can Tennessee still apply for primacy and spend out of its coal mining protection fund?

Plain-English summary

Rep. Mike Stewart asked AG Slatery to interpret Tennessee's Primacy and Reclamation Act (2018 Tenn. Pub. Acts ch. 839), the law designed to take Tennessee's coal-mining regulation back from the federal Office of Surface Mining. Tennessee originally had primacy under SMCRA but yielded it back to the federal government in 1984. The 2018 Act tries to reclaim it.

Two interlocking pieces of the Act create the puzzle.

Section 44 directs the Governor to "take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes."

Tenn. Code Ann. § 59-8-133(a) says: "Implementation of this part is subject to the availability of federal funds for such purpose."

The question is what "implementation of this part" means. The AG concludes it means the new Part 1 of Title 59, Chapter 8 (the codified Tenn. Code Ann. §§ 59-8-101 to -133). Section 44 of the session law is not part of that codified part; it sits in the act but outside the codified part. So § 59-8-133(a)'s federal-funds contingency does not reach the Governor's § 44 duty to apply for primacy and seek funds. The Governor must press ahead with the application regardless of whether federal money is currently flowing.

Question 2 is about money flowing the other way: spending out of the coal mining protection fund. Section 59-8-132(a) creates the fund and routes fees and other moneys into it. Section 59-8-132(b) says the fund's contents "shall be used for the administration and enforcement of the requirements of this part." Section 59-8-133(b) imposes the operational constraint: "[t]he cost of administering and enforcement of this part shall be paid in equal proportions by federal funds made available for such purpose and funds in the coal mining protection fund."

The AG reads "equal proportions" literally. If zero federal dollars come in, zero state-fund dollars can go out, because zero matches zero proportionally only at zero. Any expenditure of state fund money requires a corresponding federal contribution at the same level.

So the structure is: the application work for primacy can move forward without federal funding. But once Tennessee actually has primacy and starts running the program, every state dollar of administration and enforcement requires a federal dollar match.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Primacy and Reclamation Act's implementation depended on federal grant approval and ongoing federal cooperation. Status checks on whether Tennessee has actually achieved primacy, and whether the federal-match dynamic has continued to constrain spending, should look at the current Office of Surface Mining state-program status for Tennessee.

Common questions

Q: What does the federal-match rule actually say?
A: Section 59-8-133(b) directs that the cost of administering and enforcing the Act "shall be paid in equal proportions" by federal funds and by the coal mining protection fund. The opinion applies that text but does not explain the legislature's reasons for the equal-proportions requirement.

Q: What happens if no federal funds are available?
A: The opinion concluded that if no federal funds come in, no protection-fund money may be spent, because any expenditure would not be in "equal proportion" to the federal funds spent. The opinion did not address mid-year changes in funding levels beyond that equal-proportions holding.

Q: Could Tennessee fund the program from the general fund instead?
A: The Act ties administration and enforcement to the coal mining protection fund and federal funds. General-fund appropriations would require additional legislative action; the existing structure does not contemplate them as an automatic backup.

Q: Why does the AG distinguish "implementation of this part" from § 44 duties?
A: Statutory drafting convention. When the General Assembly says "this part," it means the codified part of the Tennessee Code where the section sits. Section 44 of the session law was an uncodified directive to the Governor, separate from the codified provisions. Common-form examples in the opinion (Tenn. Code Ann. §§ 47-18-1311, 49-50-906(a), 68-14-503(1)) all use "this part" the same way.

Q: Does the AG's reading mean the application process gets state-funded indefinitely?
A: Not necessarily. The opinion does not rule on what fund the Governor's application activities are paid from. It says only that the duty to apply is not contingent on federal funding. Whether application costs come from existing agency budgets or from a separate appropriation is a budgeting question for the Governor and the General Assembly.

Q: How does this connect to historical Tennessee mining regulation?
A: Tennessee had a state program from the late 1970s but withdrew it in 1984 (49 Fed. Reg. 27,325). Federal regulation has covered Tennessee surface coal mining since then. The 2018 Act is the legislative attempt to reverse that 1984 withdrawal. Tenn. Att'y Gen. Op. 08-51 and Op. 85-95 trace the earlier history.

Background and statutory framework

The federal Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. § 1253(a), provides the path for state primacy: the state submits, and the Secretary of the Interior approves, a state program meeting the SMCRA criteria. Tennessee originally took primacy under that path but yielded it back in 1984.

The 2018 Primacy and Reclamation Act (Tenn. Pub. Acts ch. 839) reverses the 1984 withdrawal. Part of the Act is codified at Tenn. Code Ann. §§ 59-8-101 to -133, with the rest sitting in the session law as uncodified directives. The codified portions create the regulatory framework, the coal mining protection fund (§ 59-8-132), and the federal-funds contingency and equal-proportions rule (§ 59-8-133).

The opinion's textual move is to read "this part" in § 59-8-133(a) as referring only to the codified part. Examples like § 47-18-1311 (Consumer Protection Act) and § 49-50-906(a) (state board of education) confirm that "this part" is an in-codification cross-reference.

Citations

• 30 U.S.C. § 1253(a); 30 C.F.R. § 732.15
• Tenn. Code Ann. §§ 59-8-101 to -133
• Tenn. Code Ann. § 59-8-132(a), (b); § 59-8-133(a), (b)
• 2018 Tenn. Pub. Acts ch. 839 §§ 1, 44
• Tenn. Code Ann. §§ 47-18-1311; 49-50-906(a); 68-14-503(1) (illustrative "this part" cross-references)
• Tenn. Att'y Gen. Op. 08-51 (Mar. 11, 2008); Op. 85-95 (Apr. 1, 1985)
• Tennessee Regulatory Program; Withdrawal of Proposed Rulemaking Actions, 49 Fed. Reg. 27,325 (July 3, 1984)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-26.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
June 27, 2018
Opinion No. 18-26

Interpretation of the Primacy and Reclamation Act of Tennessee

Question 1
Section 44 of the Primacy and Reclamation Act of Tennessee, 2018 Tenn. Pub. Acts, ch. 839, requires the Governor to apply to obtain exclusive jurisdiction over surface mining and reclamation in the State and to request as much federal funding as possible. Are actions taken by the Governor in furtherance of that duty contingent on the availability of federal funds?

Opinion 1
No.

Question 2
Are expenditures from the coal mining protection fund established in the Primacy and Reclamation Act, Tenn. Code Ann. § 59-8-132, limited by the amount of federal funds available?

Opinion 2
Yes.

ANALYSIS

Under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), a State may "assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations" within its territory if it submits, and the Secretary of the Interior approves, a state program that complies with several requirements enumerated in the SMCRA. 30 U.S.C. § 1253(a); see Tenn. Att'y Gen. Op. 08-51 (Mar. 11, 2008). Although Tennessee formerly assumed exclusive jurisdiction pursuant to an approved state program, it yielded that authority back to the federal government in 1984. See Tenn. Att'y Gen. Op. 85-95 (Apr. 1, 1985); Tennessee Regulatory Program; Withdrawal of Proposed Rulemaking Actions, 49 Fed. Reg. 27,325 (July 3, 1984).

The General Assembly recently enacted the Primacy and Reclamation Act of Tennessee, 2018 Tenn. Pub. Acts, ch. 839, which seeks to restore the State's exclusive regulatory jurisdiction, i.e., the State's primacy, over surface coal mining and reclamation operations within Tennessee. The Primacy and Reclamation Act adds a new part to chapter 8, title 59, of the Tennessee Code, to be codified at Tenn. Code Ann. §§ 59-8-101 to -133, which establishes a state program to satisfy the federal requirements for state primacy. 2018 Tenn. Pub. Acts, ch. 839, § 1; see also 30 U.S.C. § 1253(a)(1)-(7); 30 C.F.R. § 732.15 (establishing the necessary criteria for approval of a state program). The Act also directs the Governor to "take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes." 2018 Tenn. Pub. Acts, ch. 839, § 44.

1. The Primacy and Reclamation Act conditions the implementation of some of its provisions on the availability of federal funds. As added by the Act, Tenn. Code Ann. § 59-8-133(a) provides that "[i]mplementation of this part is subject to the availability of federal funds for such purpose." The "part" to which the statutory language refers is the "new part" of the Tennessee Code added by the Act. See 2018 Tenn. Pub. Acts ch. 839, § 1 ("Tennessee Code Annotated, Title 59, Chapter 8, is amended by adding the following language as a new part."). Such language is a common statutory cross-reference referring to the specific "part" of the Code in which the section is located. See, e.g., Tenn. Code Ann. § 47-18-1311 ("Implementation and administration of this part shall be subject to an annual appropriation[.]"); id. § 49-50-906(a) (authorizing the state board of education to take action it deems "necessary to implement and to oversee implementation of this part"); id. § 68-14-503(1) (granting the commissioner of health the authority to "[c]arry out or cause to be carried out all provisions of this part").

The requirement in section 44 of the Primacy and Reclamation Act that the Governor take all action necessary to submit requests for federal funding and applications to obtain exclusive jurisdiction over surface mining and reclamation operations is not included in the statutory "part" to which § 59-8-133(a) refers. Section 44 is part of the same Act, but that requirement is not included in part 1 of chapter 8, title 59, of the Tennessee Code. Accordingly, the Governor's efforts to submit requests for federal funding and applications to obtain state primacy do not constitute "implementation" of the part and are not subject to the availability of federal funds under § 59-8-133(a).

2. Section 59-8-133, as added by the Primacy and Reclamation Act, also establishes a requirement governing the source of funds used to administer and enforce the Act. Under § 59-8-133(b), the "cost of administering and enforcement of this part shall be paid in equal proportions by federal funds made available for such purpose and funds in the coal mining protection fund, created in § 59-8-132."

The Primacy and Reclamation Act creates a segregated fund within the state treasury known as the "coal mining protection fund," and directs that the various fees and other money collected pursuant to the Act be deposited in that fund. See Tenn. Code Ann. § 59-8-132(a). The money in that fund "shall be used for the administration and enforcement of the requirements of this part." Id. § 59-8-132(b).

Section 59-8-133, however, conditions the implementation of the Act on the "availability of federal funds" and mandates that the cost of administering and enforcing the act be paid "in equal proportions by federal funds . . . and funds in the coal mining protecting fund."

Accordingly, the cost of implementation and enforcement must be paid by equal amounts of federal funds and money in the coal mining protection fund. If no federal funds are available, then no money from the coal mining protection fund may be spent because such an expenditure would not be in "equal proportion[]" to the amount of federal funds spent.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Mike Stewart
State Representative
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Suite 662, Cordell Hull Bldg.
Nashville, Tennessee 37243