The state of Rhode Island seeks interlocutory review of a decision by the Environmental Appeals Board (the EAB) denying its motion to intervene in a pollution-discharge permit proceeding. The case presents a threshold question about the availability of judicial review with respect to such interlocutory administrative determinations. We hold, as a matter of first impression in this circuit, that the collateral order doctrine applies to agency determinations. Here, however, the order appealed from does not fit within the parameters of that doctrine: the EAB proceedings are ongoing, and Rhode Island’s challenge to the intervention decision can (and should) be adjudicated at the conclusion of the administrative proceedings. Consequently, we dismiss the appeal for want of appellate jurisdiction.
I. THE STATUTORY FRAMEWORK
The principal purpose of the Clean Water Act (the CWA) is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a);
see also Adams v. EPA,
NPDES permits may be issued either by the Environmental Protection Agency (the EPA) or, in those states authorized to administer their own NPDES programs, by a state agency (subject, however, to EPA review). 33 U.S.C. § 1342. Since Massachusetts is not a specially authorized state, we focus here on the EPA’s permitting procedures.
Once the EPA receives a permit application, its regional administrator typically prepares a draft permit, invites comment, and initiates a public hearing. 40 C.F.R. §§ 124.6, 124.10, 124.12. At the end of this process, the regional administrator hands down a decision denying or granting the permit. Id. § 124.15. A granted permit ordinarily will carry conditions, which may be of varying scope and severity. 33 U.S.C. § 1342(a). Any person who has participated during the comment period may, within thirty days, petition the EAB for review of the EPA’s decision (including review of the permit conditions). 40 C.F.R. § 124.19(a). That review is discretionary. Id. Should the EAB deny review, the EPA-endorsed permit becomes administratively final. Id. § 124.19(c).
If, however, the EAB elects to afford review, it gives public notice to that effect. Id. It then sets a briefing schedule and invites interested persons to participate as amici (i.e., “friends” of the Board). Id. *22 Only after an EAB determination on the merits is the regional administrator authorized to issue a final permit. Id. § 124.19(f)(1). Any interested person can then petition for judicial review of the EAB’s actions (or any aspect thereof) in the appropriate circuit court of appeals. 33 U.S.C. § 1369(b)(1)(F).
II. FACTUAL AND PROCEDURAL BACKGROUND
This case involves the Brayton Point power plant, operated by USGen New England, Inc. (USGen) in Somerset, Massachusetts. The plant sits on the shores of Mount Hope Bay, a body of water lying partly within Rhode Island’s borders. Heat is a pollutant for CWA purposes, id. § 1362(6), and the plant’s cooling system discharges water into the bay at elevated temperatures. According to the EPA, discharges of heated water from the plant have detrimentally affected the bay’s fish population.
The NPDES permit for Brayton Point expired in 1998. USGen applied for a renewed permit and, throughout the pen-dency of the permitting procedures, the EPA undertook to address concerns about the plant’s discharge protocol. A draft permit was issued in 2002. Rhode Island played an active role during the comment period. On October 6, 2003, the EPA’s regional administrator for Region I handed down a proposed final NPDES permit for Brayton Point’s discharge system. The permit contained a series of new, more stringent conditions. USGen filed a petition for administrative review and requested an evidentiary hearing. Rhode Island moved for leave to intervene in order to support the proposed permit or, alternatively, for permission to participate as an amicus.
The EAB responded by issuing a multi-part order. In re USGen New Engl., Inc. Brayton Point Station, NPDES Appeal No. 03-12, slip op. (Envtl.App.Bd. Feb. 19, 2004), available at http://www.epa.gov/eab/orders/usgen.pdf. The order granted USGen’s petition for review, reserved decision on whether to hold an evidentiary hearing, denied Rhode Island’s motion to intervene without prejudice (with the proviso that the motion could be renewed in the event that the EAB subsequently decided to convene an evidentiary hearing), granted Rhode Island amicus status, and set a briefing schedule.
Rhode Island took an immediate appeal from the conditional denial of its motion to intervene. We expedited review and heard oral arguments on June 7, 2004. We now conclude that we lack jurisdiction over Rhode Island’s interlocutory appeal.
III. APPELLATE JURISDICTION
Federal courts are courts of limited jurisdiction.
Am. Fiber & Finishing, Inc. v. Tyco Healthcare Group,
A. Section 1369(b)(1)(F).
Rhode Island’s first response is to identify 33 U.S.C. § 1369(b)(1)(F) as the basis for appellate jurisdiction in this case. This is a very frail hook. The statute provides:
Review of the Administrator’s action ... in issuing or denying any permit under section 1342 of this title ... may be had by any interested person in the [appropriate] Circuit Court of Appeals of the United States ... upon application by such person. Any such application shall *23 be made within 120 days from the date of such ... issuance or denial....
33 U.S.C. § 1369(b)(1)(F). By its plain terms, this provision conditions the availability of judicial review on the issuance or denial of a permit. In addition, the case law has construed the provision in that manner.
See, e.g., Appalachian Energy Group v. EPA
Given the statutory and regulatory scheme, this construction defeats Rhode Island’s first jurisdictional claim. Where a petition for administrative review has been timely filed, the regional administrator issues or withholds a permit only at the conclusion of the EAB review process. 40 C.F.R. § 124.19(f)(1). This means that where EAB proceedings are ongoing—as they are here—-there has not as yet been an issuance or denial of a permit sufficient to support the invocation of circuit court jurisdiction under section 1369(b)(1)(F).
This reading of section 1369(b)(1)(F) comports with the “strong presumption” that “judicial review [of an agency decision] will be available only when agency action becomes final.”
Bell,
B. The Collateral Order Doctrine.
Rhode Island has a fallback position. Despite the absence of final agency action in the traditional sense, Rhode Island suggests that the EAB’s order denying intervention is amenable to immediate review under the so-called collateral order doctrine.
See Cohen v. Beneficial Indus. Loan Corp.,
We begin by stepping backward in time. The collateral order doctrine was developed as a safety valve to provide a modicum of relief from overly strict application of the requirement that appellate courts review only final decisions of
district courts. See
28 U.S.C. § 1291 (“The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ....”);
see also Digital Equip. Corp. v. Desktop Direct, Inc.,
First and foremost, the Supreme Court has strongly signaled, in a trilogy of cases, that
Cohen’s
rationale carries over to administrative terminations. In
Mathews v. Eldridge,
[T]he nature of the claim being asserted and the consequences of deferment of judicial review are important factors in determining whether a statutory requirement of finality has been satisfied. The role these factors may play is illustrated by the intensely “practical” approach which the Court has adopted, Cohen v. Beneficial Ind. Loan Corp., ... when applying the finality requirements of 28 U.S.C. § 1291.... To be sure, certain of the policy considerations implicated in ... [§ ] 1291 cases are different from those that are relevant here. But the core principle that statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered remains applicable.
Id.
at 331 n. 11,
In a subsequent case, the Supreme Court, albeit with only meager discussion, actually applied the collateral order doctrine to determine the reviewability of an agency order.
See FTC v. Standard Oil Co.,
Second, we see no overriding policy reason to apply a wholly different rule of finality to review of agency determinations. Both in litigation and in administrative proceedings, insisting upon a final decision before appellate intervention promotes efficiency by avoiding disruption, delay, duplication, and needless expense. Such a rule also allows the tribunal of first instance, be it a court or an agency, an opportunity to shepherd a case to an orderly and expeditious conclusion without the interruptions that accompany piecemeal review.
Compare Richardson-Merrell, Inc. v. Koller,
There may, of course, be an argument that finality has added value in the administrative context.
Cf. McKart v. United States,
Third, and finally, every circuit to have considered the question to date has determined (often with little or no analysis) that the collateral order doctrine applies to judicial review of administrative determinations.
See Osage Tribal Council v. U.S. Dep’t of Labor,
These three reasons converge to make a solid case for the deployment of the collateral order doctrine in judicial review of administrative determinations. Accordingly, we hold that the doctrine is generally applicable in that context.
C. The Denial of Intervention.
Against this backdrop, we turn to the question of whether the EAB’s order denying Rhode Island’s motion to intervene qualifies as an immediately appealable order under the collateral order doctrine. To reach that safe harbor, the order must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.”
Coopers & Lybrand v. Livesay,
In this instance, the question of intervention plainly satisfies the second prong of the test; the issue is separable from the merits of the underlying proceeding.
Cf. Williams v. Katz,
Under the first prong of the collateral order test, an order must “conclusively determine the disputed question.”
Coopers & Lybrand,
There is some authority suggesting that denials of intervention without prejudice fail to satisfy
Cohen’s
“conclusiveness” requirement.
See, e.g., United States v. City of Milwaukee,
This brings us to the third prong of the test: unreviewability. An order flatly denying a motion to intervene in a judicial proceeding is an immediately appealable collateral order.
See
6 James Wm. Moore, Moore’s Federal Practice ¶ 24.24[1], at 24-90 to 24-92 (3d ed.2004);
see, e.g., Pub. Serv. Co. v. Patch,
A denial of intervention in an EAB proceeding carries critically different consequences. As said, a party who is refused intervention in a court case cannot thereafter appeal from a final judgment. 6 Moore’s Federal Practice,
supra
¶ 24.24[1], at 24-92 & n. 5.4 (collecting eases). Under the CWA, however, “any interested person,” whether or not a party to the permit proceedings before the EAB, is entitled to judicial review of the final agency action (the regional administrator’s issuance or denial of a permit).
1
See
33 U.S.C. § 1369(b)(1). While courts have read this statute to incorporate, at a minimum, the injury-in-fact requirement for Article III standing,
see, e.g., Am. Forest & Paper Ass’n v. EPA,
For present purposes, this distinction looms large. Assuming that Rhode Island meets the threshold “interested person” requirement — if it does not, then it hardly can complain about the denial of interven *27 tion — it will be entitled to appeal from the EPA’s final permitting decision, even without intervenor status. See 33 U.S.C. § 1362(5) (defining “person” to include states). In the course of that appeal, the state can challenge not only the EAB’s merits decision but also its decision to deny intervention. Cf 5 U.S.C. § 704 (“A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action.”). Therefore, the eases authorizing collateral review of denials of intervention in judicial proceedings have scant persuasive force here.
We are guided, instead, by the Supreme Court’s opinion in
Stringfellow v. Concerned Neighbors in Action,
This emphasis on the ability vel non to prosecute an efficacious end-of-case appeal after a denial of intervention has not escaped notice. Precedent in this and other circuits draws the same distinction.
See, e.g., Eng v. Coughlin,
We find this line of authority compelling. The judicial review provisions of the CWA ensure that the denial of intervention will neither extinguish nor curtail Rhode Island’s right to appeal upon the issuance of a final permit. This means, of course, that there is nothing unreviewable about the EAB’s denial of intervention.
Of course,
Stringfellow
advisedly phrased the requirement, for purposes of the third prong of the collateral order test, in terms of whether an order was amenable to
“effective
review.”
This qualification does not help Rhode Island. In
Stringfellow,
the. Supreme Court held that the putative intervenors’ interest in taking a more robust role in the proceedings, however substantial, would not be “irretrievably lost in the absence- of an immediate appeal.”
We have equated a showing of effective unreviewability with a showing of irreparable harm arising out of the postponement of appellate review.
In re Recticel Foam,
To say that Rhode Island’s interests will not be irretrievably prejudiced in the absence of an immediate appeal is not to say that postponing review until the occurrence of final agency action is cost-free. By refusing to intercede at this stage, we introduce the prospect of duplicative proceedings should the denial of intervention eventually be deemed improvident. That sort of cost is real, but it is an almost inevitable byproduct of the finality rule in ordinary litigation as well as in administrative adjudication.
Cf. R.R. Donnelley & Sons Co. v. FTC,
IV. CONCLUSION
We need go no further.
3
We do not minimize Rhode Island’s interest in the
*29
purity of the waters of Mount Hope Bay— but Rhode Island has the ability to protect that interest adequately on an end-of-case appeal from whatever final permitting decision eventuates. Thus, its appeal fails to meet the unreviewability prong of the collateral order test. As said, unreviewability is a sine qua non for immediately appeal-able collateral orders.
See Stringfellow,
The petition for judicial review is dismissed without prejudice for want of appellate jurisdiction.
Notes
. This is a fairly typical provision in federal administrative schemes. See, e.g., 26 U.S.C. § 9011 (permitting judicial review of certain actions of the Federal Election Commission upon petition "by any interested person”); 33 U.S.C. § 2717 (authorizing judicial review of regulations promulgated under the Oil Pollution Act “upon application by any interested person”); see generally 5 U.S.C. § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”).
. Rhode Island argues that an amicus does not have the same right to raise new issues as a party. Petitioner’s Br. at 12. That may be true in a court case,
see, e.g., Lane v. First Nat'l Bank,
. There is another potential ground for deeming the collateral order doctrine inapplicable in this case: the precise (and somewhat unorthodox) wording of the jurisdictional grant contained in 33 U.S.C. § 1369(b)(1)(F). Unlike, say, section 704 of the Administrative
*29
Procedure Act, 5 U.S.C. § 704 (which provides generally for judicial review of any "final agency action”) or the counterpart provision found in the Clean Air Act, 42 U.S.C. § 7607(b)(1) (which provides for judicial review of regulations, orders, “or any other final action[s] of the Administrator”), the CWA restricts judicial review to actions taken "in issuing or denying any permit.” 33 U.S.C. § 1369(b)(1)(F). Because judicial review is triggered only by actions “issuing or denying” permits and not by final agency actions generally, it is at least arguable that section 1369(b)(1)(F) may not be amenable to a pragmatic construction that allows for
any
judicial review before a final permitting decision is made.
Cf. Appalachian Energy Group,
. On July 23, 2004, while this opinion was at the printer's, the EAB denied USGen's motion for an evidentiary hearing, scheduled oral argument on the merits of the permitting decision, and granted Rhode Island the right to participate in those arguments (albeit as an amicus). Viewed collectively, these orders reinforce the conclusions reached in this opinion.