MINGO LOGAN COAL COMPANY, APPELLEE v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, APPELLANT
No. 12-5150
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2013 Decided April 23, 2013
Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00541)
Emma C. Cheuse, Jennifer C. Chavez and Benjamin A. Luckett were on brief for amici curiae West Virginia Highland Conservancy et al. in support of the appellant.
Robert M. Rolfe argued the cause for the appellee. George P. Sibley III, Virginia S. Albrecht and Deidre G. Duncan were on brief.
Kathryn Kusske Floyd and Jay C. Johnson were on brief for amici curiae Chamber of Commerce of the United States of America et al. in support of the appellee.
Michael A. Carvin and Kevin P. Holewinski were on brief for amicus curiae United Company in support of the appellee.
Benjamin L. Bailey and Michael B. Hissam were on brief for amicus curiae Randy Huffman in support of the appellee. Thanos Basdekis entered an appearance.
Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
The Mingo Logan Coal Company (Mingo Logan) applied to the United States Army Corps of Engineers (Corps) for a permit under section 404 of the Clean Water Act (CWA),
I.
The CWA provides that “the discharge of any pollutant by any person shall be unlawful” except as in compliance with specifically enumerated CWA provisions,
specification) of any defined area as a disposal site, and . . . to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site“—“whenever he determines” the discharge will have an “unacceptable adverse effect” on identified environmental resources.
In June 1999, Hobet Mining, Inc., Mingo Logan‘s predecessor, applied for a section 404 permit to discharge material from the Spruce No. 1 Mine into four West Virginia streams and their tributaries. In 2002, after the Corps prepared a draft Environmental Impact Statement, EPA expressed its concern that “even with the best practices, mountaintop mining yields significant and unavoidable environmental impacts that had not been adequately described in the document.” Letter from EPA, Region III to Corps, Huntington Dist., at 1 (June 16, 2006) (JA 617). In the end, hоwever, EPA declined to pursue a subsection 404(c) objection. Email from EPA to Corps (Nov. 2, 2006) (JA 982) (“[W]e have no intention of taking our Spruce Mine concerns any further from a Section 404 standpoint . . . .“). On January 22, 2007, the Corps issued Mingo Logan a section 404 permit, effective through December 31, 2031, which authorized Mingo Logan to dispose of material into three streams—Pigeonroost Branch, Oldhouse Branch and Seng Camp Creek—and certain tributaries thereto. Dep‘t of the Army Permit No. 199800436-3 (JA 984) (Spruce Mine Permit). The permit expressly advised that the Corps “may reevaluate its decision on the permit at any time the circumstances warrant” and that “[s]uch a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in
On September 3, 2009, EPA wrote the Corps requesting it “use its discretionary authority provided by
EPA‘s Regional Director published the promised notice of proposed determination on April 2, 2010, requesting public comments “[p]ursuant to Section 404(c) . . . on its proposal to withdraw or restrict use of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and certain tributaries to those waters in Logan County, West Virginia to receive dredged and/or fill material in connection with construction of the Spruce No. 1 Surface Mine.” Proposed Determination, 75 Fed. Reg. 16,788, 16,788 (Apr. 2, 2010). The Regional Director followed up with a Recommended Determination on September 24, 2010, limited to withdrawal of the specification of Pigeonroost Branch and Oldhouse Branch and
their tributaries. On January 13, 2011, EPA published its Final Determination, which, adopting the Regional Director‘s recommendation, formally “withdraws the specification of Pigeonroost Branch, Oldhouse Branch, and their tributaries, as described in [the Sprucе Mine Permit] . . . as a disposal site for the discharge of dredged or fill material for the purpose of construction, operation, and reclamation of the Spruce No. 1 Surface Mine” and “prohibits the specification of the defined area . . . for use as a disposal site associated with future surface coal mining that would be expected to result in a nature and scale of adverse chemical, physical, and biological effects similar to the Spruсe No. 1 mine.” Final Determination of the Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV, 76 Fed. Reg. 3126, 3128 (Jan. 19, 2011).
Mingo Logan filed this action in district court immediately following the Proposed Determination, challenging EPA‘s authority to “revoke” the three-year-old permit, Compl., ¶ 75, Mingo Logan Coal Co. v. U.S. EPA, C.A. No. 10-00541 (D.D.C. Apr. 2, 2010), and amended its complaint in February 2011 to challenge the Final Determination, asserting it is both ultra vires and arbitrary and capricious. Am. Compl., Mingo Logan Coal (Feb. 28, 2011).
On cross-motions for summary judgment, the district court granted judgment to Mingo Logan on March 23, 2012. Mingo Logan Coal Co. v. U.S. EPA, 850 F. Supp. 2d 133 (D.D.C. 2012). The court concluded EPA “exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under section 404(a).” Id. at 134. The United States filed a timely notice of appeal on
behalf of EPA. The Corps joined EPA on brief. See Appellant Br. & Reply Br.
II.
In granting summary judgment, the distriсt court agreed with Mingo Logan‘s interpretation
We first ask “whether Congress has directly spoken to the precise question at issue,” in which case we “must give effect to the unambiguously expressed intent of Congress.” If the “statute is silent or ambiguous with respect to the specific issue,” however, we move to the second step and defer to the agency‘s interpretation as long as it is “based on a permissible construction of the statute.”
Natural Res. Def. Council v. EPA, 706 F.3d 428, 431 (D.C. Cir. 2013) (quoting Chevron, 467 U.S. at 842–43). We construe subsection 404(c) under Chevron step 1 because we believe the languаge unambiguously expresses the intent of the Congress.
As noted earlier, see supra p. 3, section 404 vests the Corps, rather than EPA, with the authority to issue permits to discharge fill and dredged material into navigable waters and to specify the disposal sites therefor. See
Committee, 1 A Legislative History of the Water Pollution Control Act Amendments of 1972 (Legislative History) 161, 177 (Jan. 1973) (Statement of Sen. Edmund Muskie, 118 Cong. Rec. at 33,699 (Oct. 4, 1972)) (Senate Committee “had reported a bill which treated the disposal of dredged spoil like any other pollutant” but Conference Committee adopted provisions of House bill that “designated the Secretary of the Army rather than the Administrator of the Environmental Protection Agency as the permit issuing authority“). Nonetheless, the Congress granted EPA a broad environmental “backstop” authority over the Secretary‘s discharge site selection in subsection 404(c), which provides in full:
(c) Denial or restriction of use of defined areas as disposal sites
The Administrator is authorized to prohibit the specifiсation (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supрlies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.
and over any specific spoil to be disрosed of in any selected
See 20 Oxford English Dictionary 210 (2d ed.1989) (defining “whenever,” used in “a qualifying (conditional) clause,” as: “At whatever time, no matter when.“). Thus, the unambiguous language of subsection 404(c) manifests the Congress‘s intent to confer on EPA a broad veto power extending beyond the permit issuance.3 This construction is further buttressed by subsection 404(c)‘s authorization of a “withdrawal” which, as EPA notes, is “a term of retrospective application.” Appellant Br. 27. EPA can withdraw a specification only after it has bеen made. See 20 Oxford English Dictionary 449 (2d ed.1989) (defining “withdraw” as “[t]o take back or away (something that has been given, granted, allowed, possessed, enjoyed, or experienced)“). Moreover, because the Corps often specifies final disposal sites in the permit itself—at least it did here, see Spruce Mine Permit at 1 (“You are authorized to perform work in accordance with the terms and conditions specified below . . . .“) (emphasis added) (JA 984)—EPA‘s power to withdraw can only be exercisеd post-permit. Mingo Logan‘s reading of the statute would eliminate EPA‘s express statutory right to
subsection 404(c)‘s parenthetical “withdrawal” language superfluous—a result to be avoided. See Corley v. United States, 556 U.S. 303, 314 (2009) (applying “one of the most basic interpretative canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant“) (brackets and quotation marks omitted).
Notwithstanding the unambiguous statutory language, Mingo Logаn presses its own view of the language, the statutory structure and section 404‘s legislative history to maintain that the Congress intended to preclude post-permit withdrawal. We find none of its arguments persuasive.
First, Mingo Logan argues that the statutory language itself contemplates that specification occurs before (rather than when) the permit issues and therefore can (and must) be withdrawn pre-permit. We find no such intent in the statutory directive Mingo Logan quotes—that “each such disposal site shall be specified for each such permit by the Secretary . . . through the application of guidelines developed by the Administrator, in conjunction with the Secretary.”
Second, Mingo Logan asserts EPA‘s interpretation conflicts with section 404 “as a whole.” Id. at 35. Mingo Logan claims, for example, that “EPA‘s reading obliterates the choice Congress made to give the permitting authority with all of its attributes to the Corps, not EPA.” Id. at 36. While it is true that subsections 404(a)-(b) unambiguously authorize the Secretary to issue a discharge permit—and to specify the disposal site(s) therefor—section 404(b) makes equally clear, as explained supra pp. 8-11, that the Administrator has, in effect, the final say on the specified disposal sites “whenever” he makes the statutorily required “unacceptable adversе effect” determination. Thus, insofar as site specification may be considered, as Mingo Logan asserts, an “attribute[]” of the permitting authority, the statute expressly vests final authority over this particular attribute in the Administrator.
Mingo Logan also contends that EPA‘s interpretation “tramples on provisions like sections 404(p) and 404(q) that are intended to give permits certainty and finality.” Appellee Br. 36. Subsection 404(p) provides: “Compliance with a permit issued pursuant to [section 404], including any activity carried out pursuant to a general permit issued under this section, shall be deemed compliance, for purposes of [enforcement actions brought under] sections 1319 and 1365 of [title 33] . . . .”
withdraw a specified disposal site “whenever” he determines such effects will result from discharges at the sites. And when he withdraws a disposal site specification, as he did here, the disposal site‘s “terms and conditions specified” in the permit, see Spruce Mine Permit at 1 (JA 984), are in effect amended so that discharges at the previously specified disposal sites are no longer in “[c]ompliance with” the permit—although the permit itself remains otherwise in effect to the extent it is usable.5 Moreover, as EPA notes, subsection 404(c) was enacted in 1972 and its plain meaning did not change when 404(p) was enacted five years later. Appellant Br. 33-34. As Mingo Logan acknowledges, if “the text of section 404(c) clearly and unambiguously gave EPA the power to act post-permit“—a reading it rejects—then section 404(p) “cannot be read to implicitly overturn section 404(c).” Appellee Br. 39 (citing Appellant Br. at 34 (citing Vill. of Barrington, Ill. v. STB, 636 F.3d 650, 662 (D.C. Cir. 2011))). As we have repeatedly stated throughout this oрinion, the text of section 404(c) does indeed clearly and unambiguously give EPA the power to act post-permit. Thus, subsection 404(p) does not implicitly limit section 404(c)‘s scope. Nor does EPA‘s express statutory authority to act post-permit interfere with subsection 404(q)‘s directive that the Secretary enter into
agreements with other agency heads “to minimize, to the maximum extent practicable, duplication, needless paperwork, and delays in the issuance of permits under this section” and “to assure that, to the maximum extent practicable, a decision with respect to an application for a permit under subsection (a) of this section will be made not later than the ninetieth day after the date the notice for such application is published under subsection (a) of this section.”
Finally, Mingo Logan argues that the legislative history “confirms that Congress intended EPA to act under section 404(c), if at all, prior to permit issuance.” Appellee Br. 42. In particular, it relies on the statement of then-Senator Edmund Muskie that
prior to the issuance of any permit to dispose of spoil, the Administrator must determine that the material to be disposed of will not adversely affect municipal water supplies, shellfish beds, and fishery areas (including spawning and breeding areas), wildlife or recreational areas in the specified site. Should the Administrator so determine, no permit may issue.
118 Cong. Rec. at 33,699, reprinted in Legislative History at 177 (emphasis added).
have the required “unacceptable adverse effect“—as EPA in fact did here—does not mean it is foreclosed from doing so post-permit as well—as it also did here.6 “Thus, ‘this case does not present the very rare situation where the legislative history of a statute is more probative of congressional intеnt than the plain text.’ ” Va. Dep‘t of Med. Assistance Servs. v. U.S. Dep‘t of Health & Human Servs., 678 F.3d 918, 923 (D.C. Cir. 2012) (quoting Consumer Elecs. Ass‘n v. FCC, 347 F.3d 291, 298 (D.C. Cir. 2003)) (brackets omitted).
For the foregoing reasons, we reverse the district court insofar as it held that EPA lacks statutory authority under CWA section 404(c) to withdraw a disposal site specification post-permit. Because the district court did not address the merits of Mingo Logan‘s APA challenge to the Final Determination and resolution of the issue is not clear on the present record, we follow our ususal practice and remand the issue to the district court to address in the first instance. Seе Friends of Blackwater v. Salazar, 691 F.3d 428, 434 n.* (D.C. Cir. 2012) (citing Piersall v. Winter, 435 F.3d 319, 325 (D.C. Cir. 2006)).
So ordered.