terials confirm its duty to balance "[t]he demand for mineral development... against the demand for renewable resources and the land management agency's responsibility to reasonably protect the environment." United States Dept. of Agriculture, Forest Service Minerals Program Handbook preface (1983). See also Forest Service Manual § 2802 (Dec. 1986) (stating that the Forest Service's policy is to "ensure that exploration, development, and production of mineral and energy resources are conducted in an environmentally sound manner and that these activities are integrated with planning and management of other national forest resources"); 30 U. S. C. § 1602. In sum, although the Secretary of the Interior has a substantial responsibility for managing mineral resources, Congress has entrusted the task of balancing mineral development and environmental protection in the national forests to the Department of Agriculture, and its delegate the Forest Service.

II

The Court's analysis of this case focuses on selected provisions of the federal statutes and regulations, to the exclusion of other relevant provisions and the larger regulatory context. First, it examines the Forest Service regulations themselves, apart from the statutes that authorize them. Because these regulations explicitly require the federal permits to comply with specified state environmental standards, the Court assumes that Congress intended to allow state enforcement of any and all state environmental standards. Careful comparison of the regulations with the authorizing statutes casts serious doubt on this conclusion. The regulations specifically require compliance with only three types of state regulation: air quality, see 36 CFR §228.8(a) (1986); water quality, see §228.8(b); and solid waste disposal, see § 228.8(c). But the Court fails to mention that the types of

courage Federal agencies to facilitate availability and development of domestic resources to meet critical materials needs." 30 U. S. C. § 1602(7).

state regulation preserved by §228.8 already are preserved by specific nonpre-emption clauses in other federal statutes. See 42 U. S. C. §7418(a) (Clean Air Act requires federal agencies to comply with analogous state regulations); 33 U. S. C. §1323(a) (similar provision of the Clean Water Act); 42 U. S. C. § 6961 (similar provision of the Solid Waste Disposal Act). The Forest Service's specific preservation of certain types of state regulation-already preserved by federal law-hardly suggests an implicit intent to allow the States to apply other types of regulation to activities on federal lands. Indeed the maxim expressio unius est exclusio alterius suggests the contrary.3

The second part of the Court's analysis considers both the NFMA and the FLPMA. The Court assumes, ante, at 585, that these statutes "pre-emp[t] the extension of state land use plans onto unpatented mining claims in national forest lands." But the Court nevertheless holds that the Coastal Commission can require Granite Rock to secure a state permit before conducting mining operations in a national forest. This conclusion rests on a distinction between "land use plan

'The Court rests this part of its pre-emption analysis on Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707 (1985). In that case, the Court stated: "[W]e will pause before saying that the mere volume and complexity of [an agency's] regulations indicate that the agency did in fact intend to pre-empt." Id., at 718. Hillsborough, however, is quite different from this case. First, the state regulations were designed to ensure the health of plasma donors, an aim entirely separate from the aim of the federal regulations, to ensure the purity of the donated plasma. In this case, by contrast, federal authorities already have considered the environmental effects of Granite Rock's mine. The California Coastal Commission seeks only to reconsider the decision of the federal authorities. In any event, the argument for pre-emption in this case does not rest on the Forest Service regulations alone, but also on the comprehensive regulatory system enacted by Congress. The Court cannot make Hillsborough controlling simply by considering the regulations separately from their statutory source. As I explain, infra, at 604-606, the complex of applicable statutes and regulations, considered as a whole, pre-empts the Coastal Commission's permit requirement.

ning" and "environmental regulation." In the Court's view, the NFMA and the FLPMA indicate a congressional intent to pre-empt state land use regulations, but not state environmental regulations. I find this analysis unsupportable, either as an interpretation of the governing statutes or as a matter of logic.

The basis for the alleged distinction is that Congress has understood land use planning and environmental regulation to be distinct activities. The only statute cited for this proposition is § 202(c)(8) of the FLPMA, 43 U. S. C. § 1712(c)(8), that requires the Secretary of the Interior's land use plans to "provide for compliance with applicable pollution control laws, including State and Federal air, water, noise, or other pollution standards or implementation plans." But this statute provides little support for the majority's analysis. A section mandating consideration of environmental standards in the formulation of land use plans does not demonstrate a general separation between "land use planning" and "environmental regulation." Rather, §202(c)(8) recognizes that the Secretary's land use planning will affect the environment, and thus directs the Secretary to comply with certain pollution standards.

Nor does this section support the Court's ultimate conclusion, that Congress intended the Secretary's plans to comply with all state environmental regulations. As I have explained supra, at 599-600, other federal statutes require compliance with the listed standards. Also, because the

'The Forest Service regulations discussed above mention a slightly different set of environmental standards than does the FLPMA. Both provisions specifically preserve air and water standards. The Forest Service regulations also mention solid waste disposal standards; the Land Management Act also mentions noise control standards. Cf. 42 U. S. C. § 4901(a)(3) (Noise Control Act provision stating that the "primary responsibility for control of noise rests with State and local governments"). The slight difference between the two lists of pollution standards, however, is insignificant. The feature that all the listed standards have in common is

FLPMA requires compliance only with "applicable" standards, it is difficult to treat this one section as an independent and controlling command that the Secretary comply with all state environmental standards. Rather, viewing the complex of statutes and regulations as a whole, it is reasonable to view § 202(c)(8) simply as a recognition that the Secretary's plans must comply with standards made applicable to federal activities by other federal laws.

at

The only other authority cited by the Court for the distinction between environmental regulation and land use planning is a Forest Service regulation stating that the Forest Service's rules do not "provide for the management of mineral resources," 36 CFR §228.1 (1986). From this, the Court concludes that the Forest Service enforces environmental regulation but does not engage in land use planning. This conclusion misunderstands the division of authority between the BLM and the Forest Service. As explained supra, 597-598, the BLM's management of minerals does not entail management of surface resources or the evaluation of surface impacts. Indeed, the Court acknowledges that the Forest Service is "responsible for the management of the surface impacts of mining on federal forest lands." Ante, at 585. The Forest Planning Act and the NFMA direct the Secretary of Agriculture and the Forest Service to develop comprehensive plans for the use of forest resources. Similarly, the Organic Administration Act commands the Secretary of Agriculture to promulgate regulations governing the "occupancy and use" of national forests, 16 U. S. C. §551. These regulations are integral to the Forest Service's management of national forests. To view them as limited to environmental concerns ignores both the Forest Service's broader responsibility to manage the use of forest resources and the federal policy of making mineral resources accessible to

that other federal statutes specifically preserve a place for state regulation. See supra, at 599–600.

572

5

Opinion of POWELL, J.

development. The Coastal Commission has no interest in the matters within the jurisdiction of the BLM; the regulations that it seeks to impose concern matters wholly within the control of the Forest Service. Thus, this regulation does not support the Court's distinction between environmental regulation and land use planning.

The most troubling feature of the Court's analysis is that it is divorced from the realities of its holding. The Court cautions that its decision allows only "reasonable" environmental regulation and that it does not give the Coastal Commission a veto over Granite Rock's mining activities. But if the Coastal Commission can require Granite Rock to secure a permit before allowing mining operations to proceed, it necessarily can forbid Granite Rock from conducting these operations. It may be that reasonable environmental regulations would not force Granite Rock to close its mine. This misses the point. The troubling fact is that the Court has given a state authority-here the Coastal Commission-the power to prohibit Granite Rock from exercising the rights granted by

"The lack of statutory support for the Court's distinction is not surprising, because-with all respect-it seems to me that the distinction is one without a rational difference. As the Court puts it: "Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits." Ante, at 587. This explanation separates one of the reasons for Forest Service decisions from the decisions themselves. In considering a proposed use of a parcel of land in the national forest, the Forest Service regulations consider the damage the use will cause to the environment as well as the federal interest in making resources on public lands accessible to development. The Forest Service may decide that the proposed use is appropriate, that it is inappropriate, or that it would be appropriate only if further steps are taken to protect the environment. The Court divides this decision into two distinct types of regulation and holds that Congress intended to pre-empt duplicative state regulation of one part but not the other. Common sense suggests that it would be best for one expert federal agency, the Forest Service, to consider all these factors and decide what use best furthers the relevant federal policies.