National Mining Association v. Gina McCarthyNational Mining Association v. Gina McCarthy
Case Information
*1 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2014 Decided July 11, 2014
No. 12-5310
N ATIONAL M INING A SSOCIATION , ET AL .,
A PPELLEES v.
G INA M C C ARTHY , SUED IN HER OFFICIAL CAPACITY , A DMINISTRATOR , U.S. E NVIRONMENTAL P ROTECTION A GENCY , ET AL ., A PPELLANTS H AZARD C OAL C ORPORATION , ET AL., APPELLEES Consolidated with 12-5311 Appeals from the United States District Court for the District of Columbia (No. 1:10-cv-01220) Matthew Littleton , Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Robert G. Dreher , Acting Assistant Attorney General, Aaron P. Avila , Michael T. Gray , Cynthia J. Morris , Kenneth C. Amaditz , Attorneys, and Ann D. Navaro , Attorney, Office of the Chief Counsel United States Army Corps of Engineers.
Emma C. Cheuse argued the cause for appellants Sierra Club, et al. With her on the briefs were Jennifer C. Chavez and Derek O. Teaney .
Kirsten L. Nathanson argued the cause for appellees National Mining Association and Kentucky Coal Association. With her on the brief were John C. Martin , David Y. Chung , Mindy G. Barfield , and Sadhna G. True .
Benjamin L. Bailey argued the cause for appellees State of West Virginia, et al. Mary Stephens argued the cause for appellee Commonwealth of Kentucky. With them on the brief were Michael B. Hissam , Patrick Morrissey , Attorney General, Office of the Attorney General for the State of West Virginia, Elbert Lin , Solicitor General, Mindy G. Barfield , and Sadhna G. True .
Luther J. Strange III , Attorney General, Office of the Attorney General of the State of Alabama, John C. Neiman Jr. , Solicitor General, Andrew L. Brasher , Deputy Solicitor General, Jon C. Bruning , Attorney General, Office of the Attorney General for the State of Nebraska, Mike Dewine , Atorney General, Office of the Attorney General for the State of Ohio, Scott Pruitt , Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson , Attorney General, Office of the Attorney General for the State of South Carolina, Ken Cuccinelli , Attorney General at the time the brief was filed, Office of the Attorney General for the Commonwealth of Virginia, Michael C. Geraghty , Attorney General, Office of the Attorney General for the State of Alaska, Pamela Jo Bondi , Attorney General, Office of the Attorney General for the State of Florida, Derek Schmidt , Attorney General, Office of the Attorney General for the State of Kansas, Bill Schuette , Attorney General, Office of the Attorney General for the State of Michigan, and Timothy C. Fox , Attorney General, Office of the Attorney General for the State of Montana, were on the brief for amici curiae States of Alabama, et al . in support of appellees.
Karma B. Brown , Peter C. Tolsdorf , M. Reed Hopper , Ellen Steen , Thomas Ward , Quentin Riegel , Kristy A.N. Bulleit , and Andrew J. Turner were on the brief for amici curiae American Farm Bureau Federation, et al. in support of appellees.
Before: G RIFFITH , K AVANAUGH , and S RINIVASAN , Circuit Judges . the Court filed by Circuit Judge
Opinion for K AVANAUGH .
K AVANAUGH , Circuit Judge
: The process of surface coal mining is straightforward. When a coal deposit lies close to the earth’s surface, mining companies remove the topsoil and the rock above the coal. Once the coal is exposed, the companies extract it and relocate the removed earth.
Surface coal mining in the Appalachian region produces a good deal of America’s domestic coal, which is an important source (along with natural gas and nuclear energy) for the electricity that lights American houses and businesses, and powers TVs and computers in American homes. But surface coal mining also leaves its mark on the environment. Among other effects, the process changes the nature of the land where the mining takes place, causing erosion and landslides.
In the 1972 Clean Water Act and the 1977 Surface Mining Control and Reclamation Act, Congress struck a balance between the need for coal on the one hand and the desire to mitigate surface coal mining’s environmental effects on the other. Congress created an extensive permitting system for surface coal mining projects. To conduct a coal mining project, a business must obtain permits from the Department of Interior or a federally approved state permitting program. If the mining project would result in the discharge of soil or other pollutants into navigable waters, the mining project also requires two Clean Water Act permits. The first Clean Water Act permit (known as the Section 404 permit) must be obtained from the U.S. Army Corps of Engineers. The Army Corps of Engineers permitting process also involves EPA, as EPA can deny the use of the sites selected as disposal sites for dredged or fill material. The second Clean Water Act permit (known as the Section 402 or NPDES permit) is issued by EPA or, as relevant here, EPA- approved state permitting authorities. The state permitting process likewise involves EPA, as States must submit a proposed permit to EPA for review, and EPA may object if the permit in EPA’s view does not meet extant state water quality standards or other provisions of the Clean Water Act.
In June 2009, the Army Corps of Engineers and EPA adopted an Enhanced Coordination Process to facilitate their consideration of certain Clean Water Act permits. The Enhanced Coordination Process allows EPA to screen Section 404 mining permit applications submitted to the Corps. EPA then initiates discussions with the Corps on proposed mining projects that EPA considers likely to damage water bodies.
In 2011, EPA also promulgated a Final Guidance document relating to those Clean Water Act permits. Among other things, the Final Guidance recommends that States impose more stringent conditions for issuing permits under Section 402.
The States of West Virginia and later Kentucky, along with coal mining companies and trade associations – whom we will collectively refer to as plaintiffs – challenged the Enhanced Coordination Process and EPA’s Final Guidance before the district court as exceeding EPA’s authority under the Surface Mining Control and Reclamation Act and the Clean Water Act. The District Court agreed and granted summary judgment for plaintiffs. We conclude otherwise. In our view, EPA and the Corps acted within their statutory authority when they adopted the Enhanced Coordination Process. And under our precedents, the Final Guidance is not a final agency action reviewable by the courts at this time. If and when an applicant is denied a permit, the applicant at that time may challenge the denial of the permit as unlawful.
We therefore reverse the District Court’s grant of summary judgment to plaintiffs. We remand to the District Court with directions to grant judgment for the Government on the Enhanced Coordination Process claim and to dismiss plaintiffs’ challenge to the Final Guidance.
I
The two statutes at issue in this case together regulate
surface coal mining. Under the Surface Mining Control and
Reclamation Act of 1977, mining projects require permits to
ensure that the planned projects will sufficiently protect the
environment.
See
6
Under the Clean Water Act, mining projects that result in
the discharge of soil or other pollutants into navigable waters
must meet additional requirements.
See
To ensure that no violation occurs, those mining projects that result in the discharge of soil and other pollutants into navigable waters require two Clean Water Act permits.
The first is a permit under Section 404 of the Act.
See
U.S.C. § 1344. Section 404 permits ensure that the discharge
of dredged or fill material as a result of the mining project
will not harm navigable waters. As relevant here, the Army
Corps of Engineers issues those permits, but EPA plays a role
because EPA may deny the use of an area as a disposal site if
a discharge at that site would “have an unacceptable adverse
effect” on certain water bodies, wildlife, or recreational areas.
The second is a permit under Section 402 of the Act.
See
In 2009, the two federal agencies involved in Section 404 permits, EPA and the Army Corps of Engineers, signed an “Enhanced Coordination Process” memorandum. The Enhanced Coordination Process applies to 108 permit applications that were stalled in the Section 404 permitting process because of litigation. The Enhanced Coordination Process calls for EPA to run the applications through a database that compares the information in the permit application to the guidelines the Corps must consider when issuing permits. (The guidelines identify, among other things, mining practices that may damage the environment.) Using the Enhanced Coordination Process, EPA identifies permits that could run afoul of the guidelines and notifies the Corps. Over a 60-day period, subject to extensions, EPA and the Corps, along with any interested parties, then discuss those permit applications. The Corps then decides whether to issue the permits.
In 2011, EPA also issued a Final Guidance document related to, among other things, Section 402 permits. The Final Guidance explained that recent peer-reviewed studies had found that surface coal mining raises the salinity of States’ waters. That elevated salinity increases the ability of the water bodies to conduct electricity – that is, it increases their conductivity. According to the studies, certain levels of conductivity endanger aquatic life. The Final Guidance therefore advises EPA staff to ask state permitting authorities to assess the potential for elevated conductivity in proposed Section 402 permits. For the Appalachian region, the Final Guidance recommends that water conductivity levels not exceed 300-500 μS/cm (microSiemens per centimeter).
The States of West Virginia and later Kentucky, along with coal mining companies and trade associations, brought a variety of challenges in federal district court. Collectively, the lawsuits challenged both the Enhanced Coordination Process and the Final Guidance document. Arrayed against those plaintiffs were EPA, the Army Corps of Engineers, and several intervenor environmental organizations.
First, plaintiffs argued that the Enhanced Coordination Process violates the Clean Water Act. They also contended that the Enhanced Coordination Process is a legislative rule and therefore should not have been promulgated without notice and comment under the Administrative Procedure Act. Second, they argued that the Final Guidance violates the Clean Water Act and the Surface Mining Control and Reclamation Act. In a series of rulings, the District Court granted summary judgment to plaintiffs. The rulings invalidated the Enhanced Coordination Process and the Final Guidance. We review the District Court’s grant of summary judgment de novo.
II
We first address plaintiffs’ challenges to the Enhanced Coordination Process adopted by EPA and the Army Corps of Engineers for coordination on Section 404 permits.
A
Plaintiffs argue that the Enhanced Coordination Process
violates the Clean Water Act. In particular, relying on a form
of the expressio unius canon, plaintiffs point out that
Congress has explicitly mandated EPA participation at certain
stages of the Section 404 permitting process: for example, to
co-write guidelines under Section 404(b), to veto one aspect
of a permit under Section 404(c), to minimize delays under
Section 404(q), and to exempt certain discharges from the
permitting process under Section 404(
l
).
See
We reject that argument. To begin with, nothing in the Enhanced Coordination Process has changed the statutory criteria on which the Section 404 permitting decisions are based. And nothing in the Enhanced Coordination Process has changed the substantive statutory responsibilities of the two agencies involved in the Section 404 permitting process. The Corps still makes the ultimate decision whether to approve the permit. EPA still makes the decisions on the disposal sites. So plaintiffs’ objection here is simply to enhanced consultation and coordination between two federal agencies. But no statutory provision forbids EPA from consulting with or coordinating with the Corps, or vice versa.
And we will not read into that statutory silence an
implicit ban on inter-agency consultation and coordination.
After all, this kind of inter-agency consultation and
coordination is commonplace and often desirable. Indeed,
restricting such consultation and coordination would raise
significant constitutional concerns. Under Article II of the
Constitution, departments and agencies in the Executive
Branch are subordinate to one President and may consult and
coordinate to implement the laws passed by Congress.
See
In short, the Clean Water Act does not explicitly or implicitly bar the Enhanced Coordination Process adopted by the Army Corps of Engineers and EPA. [1]
B
Plaintiffs argue, however,
that
the memorandum
initiating the Enhanced Coordination Process is a legislative
rule that was promulgated without the required notice and
comment. Legislative rules have the “force and effect of law”
and may be promulgated only after public notice and
comment.
INS v. Chadha
, 462 U.S. 919, 986 n. 19 (1983)
(internal quotation marks omitted). But the APA does not
require notice and comment for interpretive rules, general
statements of policy, and rules of organization, procedure, or
practice.
See
We need not dally on this issue. The “critical feature” of a procedural rule “is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.” James V. Hurson Associates, Inc. v. Glickman , 229 F.3d 277, 280 (D.C. Cir. 2000) (internal quotation marks omitted). That description neatly covers the Enhanced Coordination Process. The Enhanced Coordination Process is a rule of procedure and thus did not require notice and comment.
III
Plaintiffs also challenge the Final Guidance. They contend that the Final Guidance exceeds EPA’s authority under the Clean Water Act and the Surface Mining Control and Reclamation Act. According to plaintiffs, the Final Guidance’s instruction to EPA staff to recommend limitations on mining projects – including that mining projects meet the conductivity levels identified in scientific studies – impermissibly interjects extra-statutory roadblocks into States’ Section 402 permitting process.
We may review agency action under the APA only if it is
“final.”
To analyze EPA’s reviewability argument, we need to
take a step back. The APA divides agency action, as relevant
here, into three boxes: legislative rules, interpretive rules, and
general statements of policy. A lot can turn on which box an
agency action falls into. In terms of reviewability, legislative
rules and sometimes even interpretive rules may be subject to
pre-enforcement judicial review, but general statements of
policy are not.
See, e.g.
,
Whitman v. American Trucking
Associations
, 531 U.S. 457, 477-49 (2001) (reviewable
interpretive rule);
Abbott Laboratories v. Gardner
, 387 U.S.
136, 149-51 (1967) (reviewable legislative rule);
National
Park Hospitality Association v. Department of the Interior
,
538 U.S. 803, 809-11 (2003) (non-reviewable policy
statement). Legislative rules generally require notice and
comment, but interpretive rules and general statements of
policy do not.
See
So given all of that, we need to know how to classify an agency action as a legislative rule, interpretive rule, or general statement of policy. That inquiry turns out to be quite difficult and confused. It should not be that way. Rather, given all of the consequences that flow, all relevant parties should instantly be able to tell whether an agency action is a legislative rule, an interpretive rule, or a general statement of policy – and thus immediately know the procedural and substantive requirements and consequences. An important continuing project for the Executive Branch, the courts, the administrative law bar, and the legal academy – and perhaps for Congress – will be to get the law into such a place of clarity and predictability. See generally John F. Manning, Nonlegislative Rules , 72 G EO . W ASH . L. R EV . 893, 893 (2004) (“Among the many complexities that trouble administrative law, few rank with that of sorting valid from invalid uses of so-called ‘nonlegislative rules.’”).
For today, however, our far more modest task is to apply existing precedents on reviewability to EPA’s Final Guidance. Under the case law, legislative rules (and sometimes interpretive rules) may be subject to pre-enforcement review. Plaintiffs contend that the Final Guidance is a legislative rule and thus subject to pre-enforcement review now. But in EPA’s view, the Final Guidance is a general statement of policy, which means it is not subject to pre-enforcement review. As the parties frame it, the reviewability issue turns on one question: Is the Final Guidance a legislative rule or a general statement of policy?
To answer that question, we must know what makes something a legislative rule or general statement of policy. To simplify a bit, we offer the following overview: An agency action that purports to impose legally binding obligations or prohibitions on regulated parties – and that would be the basis for an enforcement action for violations of those obligations or requirements – is a legislative rule. An agency action that sets forth legally binding requirements for a private party to obtain a permit or license is a legislative rule. (As to interpretive rules, an agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties, is an interpretive rule.) An agency action that merely explains how the agency will enforce a statute or regulation – in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule – is a general statement of policy.
But those general descriptions do not describe tidy categories and are often of little help in particular cases. So in distinguishing legislative rules from general statements of policy, our cases have focused on several factors.
The most important factor concerns the actual legal effect
(or lack thereof) of the agency action in question on regulated
entities.
See Catawba County v. EPA
, 571 F.3d 20, 33-34
(D.C. Cir. 2009);
General Electric Co. v. EPA
,
Another factor in our case law concerns the agency’s
characterization of the guidance.
See Center for Auto Safety
v. National Highway Traffic Safety Administration
, 452 F.3d
798, 806 (D.C. Cir. 2006);
General Electric
,
Plaintiffs counter that this Court has referred to similar agency caveats in guidance documents as “boilerplate.” See Appalachian Power Co. v. EPA , 208 F.3d 1015, 1023 (D.C. Cir. 2000). In Appalachian Power , this Court found that an EPA guidance document was a legislative rule despite the guidance document’s caveat denying its compulsory nature. See id. But in doing so, we examined the document as a whole and noted that “the entire Guidance, from beginning to end – except the last paragraph – reads like a ukase. It commands, it requires, it orders, it dictates.” Id. Here, the caveats run throughout the document, and more to the point, the document is devoid of relevant commands. See, e.g. , J.A. 1080 (Final Guidance is “not legally or practically binding on the Corps’ determinations of whether a particular project complies” with Section 404(b)(1) guidelines).
Our cases also have looked to post-guidance events to determine whether the agency has applied the guidance as if it were binding on regulated parties. In many cases, of course, we will not yet know the answer to that question because the recently issued guidance will have been implemented in only a few instances. So we will get only an early snapshot. In any event, in this case, the sparse record before us does not suggest that the agency has applied the Final Guidance as if it were binding on regulated parties.
Plaintiffs nonetheless point to EPA’s statutory role within the permitting programs and argue that permit applicants (and state permitting authorities) really have no choice when faced with EPA “recommendations” except to fold. As plaintiffs see it, EPA will not issue the permit unless its recommendations are followed. But while regulated parties may feel pressure to voluntarily conform their behavior because the writing is on the wall about what will be needed to obtain a permit, there has been no “order compelling the regulated entity to do anything.” Independent Equipment Dealers Association v. EPA , 372 F.3d 420, 428 (D.C. Cir. 2004) (internal quotation marks and alteration omitted). States and permit applicants may ignore the Final Guidance without suffering any legal penalties or disabilities, see Oral Arg. at 40:16, and permit applicants ultimately may be able to obtain permits even if they do not meet the recommendations in the Final Guidance. And EPA agrees that the Final Guidance “has no legal impact” and that state permitting authorities are “free to ignore it.” Id. at 12:12.
To be clear, we reiterate what we have said before: “When the agency applies [a general statement of] policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.” Pacific Gas & Electric Co. v. Federal Power Commission , 506 F.2d 33, 38 (D.C. Cir. 1974).
We have considered all of plaintiffs’ arguments for obtaining review now of the Final Guidance and find them unpersuasive under the current case law. The question is not whether judicial review will be available but rather whether judicial review is available now . The Final Guidance is not a final agency action subject to pre-enforcement review. We therefore do not decide plaintiffs’ challenges to the legality of the Final Guidance at this time.
* * *
We conclude that the Enhanced Coordination Process memorandum is a procedural rule that EPA and the Corps had authority to enact under the Clean Water Act. Under our case law, we conclude that the Final Guidance is not a final agency action subject to review at this time. We therefore reverse the District Court’s grant of summary judgment and remand to the District Court with instructions to grant judgment for defendants on the Enhanced Coordination Process and to dismiss the challenge to the Final Guidance.
So ordered.
Notes
[1] Plaintiffs also argue that the Enhanced Coordination Process
is incompatible with the Corps’ regulations for processing Section
404 permit applications. Those regulations state that Corps
engineers “will be guided by” certain time limits in evaluating
permit applications, including a target that “engineers will decide
on all applications not later than 60 days after receipt of a complete
application” unless one of six exceptions applies.