The opinion of the court was delivered by: ZIEGLER
More than 60 years have passed since the Supreme Court announced its landmark decision in Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 67 L. Ed. 322, 43 S. Ct. 158 (1922). Speaking for the majority, Justice Holmes explained that the police power of government has a limit and action beyond that limit results in a "taking" of private property for which just compensation is required. The Court declared unconstitutional a Pennsylvania statute that prohibited coal mining that caused subsidence damage to surface lands.
In this case we are faced with a constitutional challenge to another Pennsylvania statute which seeks to prevent coal mining subsidence damage. However, the statute here differs from the enactment in Pennsylvania Coal; the parties are different; and, most importantly, the passage of time and subsequent decisions require that Pennsylvania Coal be placed in proper perspective.
Because plaintiffs have not alleged any injury due to the enforcement of the statute, there is as yet no concrete controversy regarding the application of the specific provisions and regulations. Thus, the only question before this court is whether the mere enactment of the statute and regulations constitutes a taking. Agins v. City of Tiburon, 447 U.S. 255, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980). For the reasons that follow, we hold that the Pennsylvania legislation and regulations do not exceed the inherent police power of the state as defined by Pennsylvania Coal and its progeny. Plaintiffs' motion for summary judgment must be denied and defendants' motion for judgment must be granted.
Five coal companies and an association representing similar interests instituted this civil action challenging the constitutionality of three sections of Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act, 52 P.S.A. § 1406.1 et seq, and three regulations of the Pennsylvania Department of Environmental Resources (DER) adopted under the act. Plaintiffs seek an injunction to prevent enforcement of these provisions by the DER officials.
The challenged provisions are as follows:
(1) Section 1406.4, which prohibits mining that causes subsidence damage to certain surface structures in place as of April 27, 1966, namely, any publicly-used building, residential building or cemetery.
(2) Section 1406.6, which gives the DER authority to revoke a mining permit if a company fails to pay a reasonable sum to repair subsidence damage to the structures listed in § 1406.4.
(3) Section 1406.15, which allows the owner of a structure not listed in § 1406.4 to pay a reasonable price to purchase from the coal company the underlying coal that supports the structure. This section provides for arbitration or mediation if the parties fail to agree upon a reasonable price.
(4) DER Regulation 89.145, which expands the protected structures of § 1406.4 to include: perennial streams and large impoundments of water, aquifers that serve as a significant source of public water supply, and coal refuse disposal areas. This regulation also prohibits mining under urban areas.
(5) DER Regulation 89.146, which requires coal operators to leave 50 percent of their coal in place for support under structures and features protected under § 1406.4 and DER Regulation 89.145.
(6) DER Regulation 89.147(b), which provides that, when underground mining activities reduce the value or foreseeable uses of surface land, the operator shall restore the land to its premining condition.
Plaintiffs contend that § 1406.4 and DER Regulations 89.145 and 89.146 violate (a) the Due Process Clause of the Fourteenth Amendment in that property is taken without just compensation and (b) the Contract Clause of the United States Constitution, Article I, Section 10, in that the regulations destroy private contract rights. Plaintiffs also argue that § 1406.6 and DER Regulation 89.147(b) impair private contracts in contravention of the Contract Clause. Finally, plaintiffs urge that § 1406.15 is an unconstitutional exercise of the power of eminent domain because the taking is without a public purpose.