Trout Unlimited v. Michelle Pirzadeh
1f4th738
| 9th Cir. | 2021Background
- Bristol Bay, Alaska, is an ecologically and commercially important salmon watershed; EPA conducted a Watershed Assessment in 2014 and issued a §404(c) proposed determination to restrict mining activity near the Pebble deposit.
- EPA published the proposed determination in 2014, received extensive public comment and hearings, and the Corps later received a permit application from Pebble Limited Partnership.
- In August 2019 EPA withdrew the 2014 proposed determination, explaining changed factual circumstances and reliance on other interagency permitting processes; EPA published the withdrawal in the Federal Register.
- Trout Unlimited sued the EPA challenging the withdrawal as arbitrary, capricious, an abuse of discretion, and contrary to law (Clean Water Act, EPA regulations, and the APA).
- The district court dismissed, concluding the withdrawal was unreviewable under the APA’s §701(a)(2) (Heckler presumption that decisions committed to agency discretion are not reviewable).
- On appeal the Ninth Circuit held that the Clean Water Act’s broad grant of authority contains no judicially manageable standard for reviewing a decision not to invoke §404(c), but EPA’s implementing regulation 40 C.F.R. §231.5(a) does supply a meaningful standard, so the withdrawal is reviewable; the court affirmed in part, reversed in part, and remanded for merits review under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA’s withdrawal of the §404(c) proposed determination is reviewable under the APA or committed to agency discretion (5 U.S.C. §701(a)(2)). | Withdrawal is final agency action and reviewable; EPA must comply with statute and regs. | Withdrawal is an exercise of broad statutory discretion and therefore unreviewable. | Statute alone grants unfettered discretion (so statutory challenge to non‑initiation is not reviewable), but the implementing regulation supplies a judicially manageable standard, making the withdrawal reviewable under the APA. |
| Proper interpretation of 40 C.F.R. §231.5(a): may a Regional Administrator withdraw a proposed determination for any reason, or only if unacceptable adverse effects are unlikely? | §231.5(a) requires withdrawal only when unacceptable adverse effects are not likely (so withdrawal is limited and reviewable). | §231.5(a) preserves full discretion to withdraw for any reason; regulation does not create a limiting substantive standard. | Court adopts Plaintiff’s reading: §231.5(a) requires withdrawal only where discharge is unlikely to have an unacceptable adverse effect, creating a meaningful standard for judicial review. |
| Whether the withdrawal is essentially an unreviewable decision not to take enforcement action (Heckler). | The withdrawal is the product of a formal regulatory process and must be judged under the agency’s regulations (not treated as ordinary non-enforcement discretion). | Withdrawal is analogous to non-enforcement discretion and presumptively unreviewable. | Court rejects characterization as an unreviewable enforcement-refusal decision for purposes of the regulatory claim; because §231.5(a) supplies a standard, Heckler does not bar review of the regulatory-compliance claim. |
Key Cases Cited
- Heckler v. Chaney, 470 U.S. 821 (1985) (presumption that agency decisions not to pursue enforcement are presumptively unreviewable)
- Bennett v. Spear, 520 U.S. 154 (1997) (finality: consummation of agency decisionmaking and legal consequences test)
- Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (narrow construction of §701(a)(2) and presumption of judicial review)
- ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059 (9th Cir. 2015) (agency regulations can create meaningful standards that convert otherwise discretionary statutory grants into reviewable actions)
- City & County of San Francisco v. U.S. Dep’t of Transp., 796 F.3d 993 (9th Cir. 2015) (discusses limits of reviewability and balancing of factors in agency discretion)
- Mingo Logan Coal Co. v. U.S. EPA, 714 F.3d 608 (D.C. Cir. 2013) (review of §404(c) final determinations)
- Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015) (refusing to apply a standard for one decision type to the inverse decision without statutory/regulatory basis)