Mingo Logan Coal Co. v. Environmental Protection Agency, 424 U.S. App. D.C. 192

Background

In 2007 the Army Corps issued Mingo Logan a Section 404 permit to dispose mine spoil in three valley-fill sites (total ~7.48 miles of streams); Mingo Logan used only the Seng Camp Creek site.
West Virginia issued and continues to administer an NPDES (Section 402) permit for discharges from the mine; EPA had previously reviewed and approved that State permit.
EPA in 2010–2011 invoked its Section 404(c) authority to withdraw specification of two unused disposal sites (Pigeonroost and Oldhouse), together comprising ~88% of the authorized discharge area, concluding the fills would cause “unacceptable adverse effects” on wildlife and downstream water quality (selenium, conductivity, salinity).
Mingo Logan sued, challenging EPA’s post‑permit withdrawal as beyond statutory authority and as arbitrary and capricious under the APA; this court previously held EPA had statutory authority to withdraw post‑permit and remanded APA claims to the district court.
On remand the district court granted summary judgment to EPA; the D.C. Circuit affirms, holding EPA’s Final Determination considered relevant factors and adequately explained its change of position. The court declines to reach a broad rule on what EPA must always consider in 404(c) withdrawals.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Whether Mingo Logan preserved claim that EPA was required to consider and balance permittee reliance costs and compliance history before withdrawal	Mingo Logan: EPA must weigh reliance costs and compliance history; EPA’s failure to do so renders the decision arbitrary; Fox heightened justification applies post‑permit	EPA: Mingo Logan forfeited that argument by not raising it with the agency/district court; CWA/404(c) do not require such balancing	Court: Forfeited — Mingo Logan failed to present sufficient, specific reliance‑cost evidence or argument to EPA or district court, so the claim is not considered on appeal
2) Whether EPA may consider downstream water quality impacts (and apply its analyses) when assessing 404(c) "unacceptable adverse effect[s]"	Mingo Logan: State (Section 402) has primary authority over water quality; EPA cannot re‑assess downstream water quality or apply ad‑hoc standards that intrude on State authority	EPA: Section 404(c) expressly permits EPA to determine whether discharges will have unacceptable adverse effects (including on municipal water supplies and wildlife); assessing downstream water quality is a legitimate step to show impacts on 404(c) resources	Court: EPA may consider downstream water quality as part of its 404(c) evaluation and did not improperly intrude on State 402 authority because EPA evaluated effects on statutorily listed 404(c) resources and connected water‑quality changes to harms to wildlife
3) Whether EPA gave adequate explanation for reversing its prior non‑objection (Fox/state‑change standard)	Mingo Logan: EPA previously declined to object in 2006–07; after issuing the permit EPA must provide a heightened, detailed justification for revocation and failed to identify substantial new information	EPA: It relied on substantial post‑permit information (peer‑reviewed studies and monitoring data from Seng Camp Creek and adjacent mines) showing selenium/conductivity and ecosystem effects; explanation suffices	Court: Even assuming Fox requires a more detailed justification, EPA satisfied it by relying on post‑permit data (including on‑site monitoring) and new scientific literature showing headwater importance and harms; explanation was not arbitrary
4) Whether EPA relied on improper factors or made findings contrary to evidence (arbitrary‑and‑capricious)	Mingo Logan: EPA’s findings (both footprint and downstream effects) are routine consequences of mining and not "unacceptable"; EPA relied on ad‑hoc standards and overstated impacts	EPA: Findings are supported by post‑permit empirical data and peer‑reviewed literature linking selenium, conductivity, golden‑algae, and species loss to unacceptable ecological harm	Court: EPA considered the relevant evidence and expertise, identified causal links between water chemistry and biological harm, and reasonably concluded the effects were "unacceptable" given the scale and biological importance of the streams — not arbitrary or capricious

Key Cases Cited

Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (agency must consider relevant factors and provide rational connection between facts and choice)
FCC v. Fox Television Stations, 556 U.S. 502 (agency changing course may need a more detailed justification where reliance interests are implicated)
Michigan v. EPA, 135 S. Ct. 2699 (agencies must consider costs where relevant to reasoned decisionmaking)
Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (distinction between Section 402 NPDES regulation and Section 404 dredge‑and‑fill regulation)
Whitman v. American Trucking Ass’ns, 531 U.S. 457 (statutory text can bar consideration of costs in certain regulatory contexts)
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (agency changing position must account for reliance where appropriate)
Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013) (holding EPA has authority under Section 404(c) to withdraw specification post‑permit)
Mingo Logan Coal Co. v. EPA, 70 F. Supp. 3d 151 (D.D.C. 2014) (district court upholding EPA’s Final Determination under APA)