NATIONAL MINING ASSOCIATION v. JACKSON
1:10-cv-01220
D.D.C.Apr 20, 2012Background
- NMA filed an APA §702 challenge to EPA EC Process and MCIR Assessment, and to Interim Guidance (2009–2010).
- Cases were consolidated with related Kentucky/West Virginia actions against EPA in the D.D.C.; Final Guidance issued July 21, 2011 mooting Interim Guidance matters.
- On Oct. 6, 2011, the court granted summary judgment for plaintiffs on EC Process and MCIR as unlawful agency actions; cross-motions on Final Guidance pending.
- Plaintiffs moved to complete/supplement the administrative record, proposing 12 documents for inclusion or consideration.
- Defendants moved to strike and urged no supplementation; dispute centers on whether pre-dating documents belong in record or as extra-record evidence.
- Court applied standards: administrative record presumptively complete; supplementation limited; extra-record evidence allowed only in narrow circumstances, with post-Guidance documents examined to assess 'as applied' challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-date documents should be added to the record | Documents were before EPA and relevant to Final Guidance. | Plaintiffs failed to show those documents were considered by EPA. | Eight pre-date documents not added as supplementary/extra-record evidence. |
| Whether post-date documents may be considered as extra-record evidence | Post-date documents illuminate EPA's application of the Final Guidance as a rule. | Post-date materials may be considered only to assess rule-like application; not to expand the record. | Four post-date documents may be considered as extra-record evidence. |
| What standard governs supplementation versus extra-record evidence | Standard supports supplementation for materials the agency considered or should have considered. | Strict limits; extra-record evidence requires exceptional circumstances. | Court follows established standards; excludes augmentation of the record with pre-date materials and permits post-date materials only as extra-record evidence. |
Key Cases Cited
- Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (eight exceptions for extra-record evidence narrowed to four)
- IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) (narrowing Esch exceptions; limits on extra-record review)
- Calloway v. Harvey, 590 F. Supp. 2d 29 (D.D.C. 2008) (standard for when to consider extra-record information)
- Amfac Resorts, L.L.C. v. Dep’t of Interior, 143 F. Supp. 2d 7 (D.D.C. 2001) (administrative record completeness and supplementation framework)
- Marcum v. Salazar, 751 F. Supp. 2d 74 (D.D.C. 2010) (need concrete evidence that challenged materials were before decisionmakers)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (judicial review limited to the administrative record)
- County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64 (D.D.C. 2008) (illustrates limits on extra-record evidence)