NOBILITY, TITLES OF

In May 1977 Congress enacted the Public Works Employment Act of 1977, which amended the Local Public Works Capital Development and Investment Act of 1976 and authorized an additional $4 billion appropriation for federal grants to state and local governmental entities for use in local public works projects. The 1977 Act added section 103(f)(2), the minority business enterprise provision, which states that except to the extent the Secretary determines otherwise, no grant shall be made unless the applicant gives satisfactory assurance that at least 10 percent of the amount of each grant shall be expended for minority business enterprises, defined as businesses at least 50 percent owned by minority group members or, in the case of a publicly owned business, at least 51 percent of the stock owned by minority group members, with minority group members defined as citizens who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts. The provision originated as a floor amendment offered in the House by Representative Mitchell on February 23, 1977. It was modified during debate to include language allowing the Secretary to determine otherwise and was adopted by the House. A similar amendment was introduced by Senator Brooke in the Senate. The Conference Committee adopted the House language with the comment that the provision shall be dependent on the availability of minority business enterprises located in the project area. Petitioners are several associations of construction contractors and subcontractors and a firm engaged in heating, ventilation, and air conditioning work. On November 30, 1977, petitioners filed a complaint in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief to enjoin enforcement of the MBE provision. Named as defendants were the Secretary of Commerce, as the program administrator, and the State and City of New York, as actual and potential project grantees. Their complaint alleged that they had sustained economic injury due to enforcement of the 10% MBE requirement. After a hearing held the day the complaint was filed, the District Court denied a requested temporary restraining order and scheduled the matter for an expedited hearing on the merits. On December 19, 1977, the District Court issued a memorandum opinion upholding the validity of the MBE program and denying the injunctive relief sought. The United States Court of Appeals for the Second Circuit affirmed, holding that even under the most exacting standard of review the MBE provision passes constitutional muster. The Supreme Court granted certiorari to consider a facial constitutional challenge to the requirement.

In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act to address land subsidence caused by underground coal mining. The Act authorizes the Department of Environmental Resources to implement and enforce a comprehensive program preventing or minimizing subsidence and consequent damage to surface structures. Section 4 prohibits mining that causes subsidence damage to public buildings, dwellings used for human habitation, and cemeteries, and generally requires that 50 percent of the coal beneath such structures remain in place to provide surface support. Petitioners are an association of coal producers and several of its member corporations engaged in underground bituminous coal mining in western Pennsylvania. They own, lease, or control substantial coal reserves and associated support estates beneath surface properties affected by the Subsidence Act. Many of these interests were severed from the surface estate between 1890 and 1920, and petitioners or their predecessors typically acquired waivers of liability for subsidence damage along with rights to deposit wastes, provide drainage and ventilation, and erect surface facilities. In 1982 petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania against the Secretary of the Department of Environmental Resources and other officials. They sought to enjoin enforcement of the Subsidence Act and its implementing regulations, alleging that Section 4 and Section 6 effected a taking of their property without compensation and that Section 6 impaired their contractual obligations. The parties entered a stipulation of facts concerning the facial challenge and filed cross-motions for summary judgment. The District Court granted summary judgment in favor of the Department officials. The Court of Appeals for the Third Circuit affirmed. The Supreme Court granted certiorari to consider the constitutional challenges to the Subsidence Act. Petitioners have never claimed that the Subsidence Act makes it commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania, nor have they identified any specific mine rendered unprofitable by the statute. The evidence in the record shows that enforcement of the 50 percent rule has required petitioners to leave less than 27 million tons of coal in place. This applies across 13 mines containing over 1.46 billion tons. It amounts to less than 2 percent of the total coal in those operations.

Beginning well over 100 years ago, landowners in western Pennsylvania began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. Approximately 90 percent of the coal that petitioners mine or will mine was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired the right to deposit wastes, provide drainage and ventilation, erect surface facilities, and obtained waivers of claims for damages resulting from coal removal. In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act after concluding that existing subsidence legislation had failed to protect public safety, land conservation, municipal tax bases, and land development. Section 4 of the Act prohibits mining that causes subsidence damage to public buildings and noncommercial buildings used by the public, dwellings used for human habitation, and cemeteries that were in place on April 17, 1966. The Department of Environmental Resources applies a formula that generally requires 50 percent of the coal beneath protected structures to remain in place. Section 6 authorizes the Department to revoke a mining permit if removal of coal causes damage to a protected structure and the operator has not repaired the damage, satisfied any claim, or deposited security equal to the reasonable cost of repair within six months. Petitioners are an association of coal mine operators and four corporations engaged in underground mining of bituminous coal in western Pennsylvania. Their members and the corporate petitioners own, lease, or control substantial coal reserves and support estates beneath surface property affected by the Act. In 1982, petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania seeking to enjoin officials of the DER from enforcing the Subsidence Act and its implementing regulations. The parties entered a stipulation of facts on the facial challenge and filed cross-motions for summary judgment. The District Court granted respondents' motion in 1984. The Court of Appeals affirmed in 1985. The Supreme Court granted certiorari in 1986. Stipulations established that enforcement of the 50 percent rule would require petitioners to leave approximately 27 million tons of coal in place across 13 mines containing over 1.46 billion tons total. This amount represents less than 2 percent of the coal in those mines. Petitioners did not claim that any specific mine had become unprofitable since the Act's passage.