National Mining Association v. Gina McCarthy
411 U.S. App. D.C. 52
| D.C. Cir. | 2014Background
- Surface coal mining under SMCRA and the Clean Water Act requires permits to protect the environment; Section 404 permits are issued by the Army Corps with EPA input, and Section 402/NPDES permits involve EPA or state authorities with EPA review.
- EPA and the Army Corps adopted an Enhanced Coordination Process in 2009 to screen 404 permit applications for potential environmental harm by comparing applications to Corps guidelines.
- In 2011 EPA issued Final Guidance regarding Section 402 permits, recommending States consider elevated conductivity in water, with suggested conductivity ranges for Appalachia.
- West Virginia and later Kentucky, with coal industry plaintiffs, challenged both the Enhanced Coordination Process and the Final Guidance in district court, arguing lack of authority or unlawful rulemaking.
- The district court granted summary judgment for plaintiffs; the DC Circuit reversed, holding the Enhanced Coordination Process was within agency authority, the Final Guidance was not yet a final reviewable action, and remanded with instructions to grant judgment for defendants on the Enhanced Coordination Process and dismiss the Final Guidance challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Enhanced Coordination Process violates the Clean Water Act | West Virginia et al. argue ECP exceeds CWA authority | EPA/Army Corps contend ECP within authority and proper coordination | Yes? No; held that ECP is within authority and judgment for defendants on ECP (reversed district court) |
| Whether ECP is a legislative rule requiring notice and comment | ECP is a legislative rule that should have formal rulemaking | ECP is a procedural rule; no notice and comment required | ECP deemed a procedural rule, not a legislative rule; not required to have notice and comment |
| Whether Final Guidance constitutes final agency action subject to pre-enforcement review | Final Guidance is final and binding; review should be allowed now | Final Guidance is not final agency action; not reviewable now | Final Guidance not reviewable at this time; remanded to dismiss challenge to Final Guidance |
Key Cases Cited
- Pacific Gas & Electric Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974) (agency policy must be supported when relied upon; general rule of law)
- Whitman v. American Trucking Associations, 531 U.S. 457 (S. Ct. 2001) (pre-enforcement review of policy statements varies by rule type)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (S. Ct. 1967) (standing early review of agency action)
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (interpretive deference framework for agency interpretations)
- Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013) (limits of EPA/Corps joint authority under CWA)
- Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) (Executive Branch interagency coordination respected)
- General Electric Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) (factors for distinguishing rules vs. policy statements)
- Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) (boilerplate caveats in guidance regarded in analysis)
- National Park Hospitality Ass'n v. Dept. of the Interior, 538 U.S. 803 (S. Ct. 2003) (policy statements and finality considerations)
- Center for Auto Safety v. NHTSA, 452 F.3d 798 (D.C. Cir. 2006) (role of guidance in agency determinations)