Caseflicks

Court of Appeals for the D.C. Circuit • 2014

National Mining Association v. Gina McCarthy

411 U.S. App. D.C. 52 | 758 F.3d 243 | 2014 U.S. App. LEXIS 13156

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Takeaway

In short, the case confirms that executive agencies may coordinate on shared permitting responsibilities without new rulemaking, while nonbinding guidance ordinarily cannot be challenged until it is applied in a concrete permit decision.

Background

Surface coal mining projects that discharge pollutants into navigable waters commonly need two Clean Water Act permits. The Army Corps of Engineers issues Section 404 permits for dredged or fill material, while EPA has specified roles in that process, including authority over disposal sites. States generally issue Section 402, or NPDES, permits, subject to EPA review and objection authority when proposed permits do not comply with applicable water-quality standards.

In 2009, EPA and the Corps adopted an Enhanced Coordination Process for 108 delayed Section 404 applications. Under that process, EPA screened applications, identified projects that might conflict with the Corps’ environmental guidelines, and consulted with the Corps and interested parties before the Corps made the ultimate permitting decision. In 2011, EPA issued Final Guidance advising its staff to encourage state authorities to assess conductivity risks from Appalachian surface mining and recommending conductivity levels of 300–500 microSiemens per centimeter.

West Virginia and Kentucky, coal companies, and trade associations challenged both measures. The district court held that the agencies exceeded their authority and invalidated the Enhanced Coordination Process and the Final Guidance. The D.C. Circuit reviewed the summary-judgment rulings de novo, reversed as to the coordination process, and directed dismissal of the challenge to the Final Guidance.

Issues

Issue #1

Whether the Clean Water Act prohibited EPA and the Army Corps of Engineers from adopting the Enhanced Coordination Process for Section 404 mining-permit applications.

Holding

No. The Clean Water Act did not expressly or implicitly bar the agencies from consulting and coordinating through the Enhanced Coordination Process.

Reasoning

The process did not alter the statutory standards governing Section 404 permits or reassign either agency’s statutory responsibilities. The Corps still made the final decision whether to issue a permit, and EPA retained its existing authority over disposal sites. The plaintiffs therefore objected not to a change in legal authority, but to greater consultation between two executive agencies.

The court rejected the plaintiffs’ expressio unius argument that Congress’s specification of several EPA roles in Section 404 silently forbade EPA from participating in any other way. Nothing in the Act prohibits consultation between EPA and the Corps, and the court would not infer such a prohibition from silence.

Interagency coordination is ordinary and often valuable within the Executive Branch. Because both agencies are subject to presidential supervision, construing the Clean Water Act to isolate them from each other would conflict with the practical and constitutional premise of a unitary Executive Branch able to coordinate implementation of federal law.

The process also did not violate the Corps’ permit-processing regulation. Although the memorandum contemplated that coordination could exceed the regulation’s 60-day target, that target was aspirational rather than mandatory, and an exception applied when information needed to make a decision could not reasonably be obtained within 60 days.

Issue #2

Whether the Enhanced Coordination Process was a legislative rule that required notice-and-comment rulemaking under the Administrative Procedure Act.

Holding

No. It was a procedural rule exempt from the APA’s notice-and-comment requirement.

Reasoning

A procedural rule may change the manner in which parties present information or views to an agency without changing their substantive rights or interests. The Enhanced Coordination Process fit that description because it established a screening and consultation procedure for pending permit applications.

The process neither imposed new legal duties on mining companies nor changed the substantive criteria for issuing Section 404 permits. It affected the agencies’ internal handling of applications while leaving the Corps’ ultimate permit decision and the governing statutory standards intact.

Issue #3

Whether EPA’s Final Guidance on conductivity and Section 402 permits was final agency action subject to immediate judicial review under the APA.

Holding

No. The Final Guidance was a nonbinding general statement of policy, not final agency action reviewable before a permit decision.

Reasoning

Under Bennett v. Spear, final agency action must mark the consummation of agency decisionmaking and determine rights or obligations or produce legal consequences. EPA conceded that the Guidance was the end of its internal deliberations, but the Guidance did not satisfy the second requirement because it imposed no legal consequences.

The Guidance did not command regulated parties to do or refrain from doing anything, establish binding conditions for obtaining a permit, or authorize an enforcement action for noncompliance. State permitting authorities remained legally free to disregard it, and EPA could not invoke the Guidance itself as a defense to a later challenge to a permit denial.

EPA’s repeated disclaimers of binding effect supported that conclusion. Unlike guidance held binding in earlier cases, this document did not read as a set of commands masked by a boilerplate disclaimer; its nonbinding character appeared throughout, and the record did not show that EPA had applied it as compulsory.

The court acknowledged that states and applicants might feel practical pressure to follow EPA’s recommendations because they could anticipate EPA’s position in particular permitting disputes. But practical pressure is not a legal order. If EPA later objects to or causes denial of a specific permit, the affected applicant may challenge that concrete decision, and EPA must justify the decision under the governing statutes and regulations rather than rely merely on the Guidance.