The U. S. District Court for the District of Columbia (court) ruled on Oct. 6 in National Mining Association v. Jackson that the U.S. Environmental Protection Agency (EPA) unlawfully changed the permitting process for Clean Water Act (CWA) § 404 permits for coal mines. The court sided with the State of West Virginia and the National Mining Association (NMA) in challenging EPA and the U.S. Army Corps of Engineers (Corps) actions that unlawfully obstructed the issuance of CWA permits and created a de facto moratorium on surface and underground coal mining within the Central Appalachian region and beyond. Apart from striking down a significant obstacle, EPA injected into the CWA § 404 permitting process, this decision should provide a valuable precedent to deter federal agencies from using informal guidance to alter regulatory procedures and impose new requirements.
The original lawsuit challenged EPA’s implementation of the "Enhanced Coordination Process" (EC process) including use of the Multi-Criteria Resource ("MCIR") assessment. NMA and West Virginia argued that these actions violated the CWA and Administrative Procedures Act (APA) by allowing EPA to usurp the Corps’ CWA authority and by imposing new requirements in complete disregard of the APA requirements for notice and comment. The court strongly agreed, declaring the EC process and MCIR assessment unlawful.
The court rejected the agencies’ arguments that the EC process and MCIR assessment were discretionary procedures necessary to carry out statutory functions, holding that “with the adoption of the MCIR assessment and the EC process, the EPA has expanded its role in the issuance of Section 404 permits and has thus exceeded the statutory authority afforded it by the Clean Water Act.” Copy of the full decision is available through: jbostic@wvcoal.com
Second Part of the Litigation
The EC process and MCIR assessment are just two of the agency actions that were the subject of NMA’s and West Virginia’s legal challenge. In addition to these claims, they also challenged the EPA and Corps’ detailed guidance issued on April 1, 2010. The guidance challenge was separated out from the original challenge when EPA replaced the interim guidance with a revised final guidance on July 21, 2011. A revised complaint was filed with the court and the briefing schedule in that case is anticipated to continue through June 2012.