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National Mining Association v. Lisa Jackson Administrator

January 14, 2011

NATIONAL MINING ASSOCIATION, PLAINTIFF,
v.
LISA JACKSON ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS, SIERRA CLUB ET AL., DEFENDANT-INTERVENORS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff brings this action against the federal defendants pursuant to the Clean Water Act, 33 U.S.C. § 1251 (2006), the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 (2006), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 (2006), challenging a series of memoranda and a detailed guidance released by the Environmental Protection Agency ("EPA"). The parties appeared before the Court on December 15, 2010, for argument on the federal defendants' motion to dismiss, Defendants' Motion to Dismiss ("Defs.' Mot. to Dismiss"), and the plaintiff's motion for a preliminary injunction, Plaintiff's Motion for a Preliminary Injunction ("Pl.'s PI Mot."). For the reasons that follow, the Court denies both the motion to dismiss and the motion for a preliminary injunction.*fn1

I. Statutory Background

This section summarizes the relevant Clean Water Act permit granting scheme. Clean Water Act Section 404 Permits Section 404 permits are issued by the United States Army Corps of Engineers ("Corps") "for the discharge of dredged and fill material into navigable waters at specified disposal sites."

33 U.S.C. § 1344(a). The Corps has sole authority to issue Section 404 permits, but in doing so it must apply guidelines that it develops in conjunction with the EPA.*fn2 Id. § 1344(b). In addition to providing the EPA with the responsibility to develop the guidelines in conjunction with the Corps, the Clean Water Act grants the EPA authority to prevent the Corps from authorizing certain disposal sites.*fn3 Id. § 1344(c). In the absence of a specific regulatory exception, the Corps must reach a decision on a pending application for a Section 404 permit no later than 60 days after receipt of the application for the permit. See 33 C.F.R. § 325.2(d)(3) (2010) (providing that "[d]istrict engineers will decide on all applications not later than 60 days after receipt of a complete application, unless" one of six exceptions applies).

Clean Water Act Section 402 Permits Known as National Pollutant Discharge Elimination System ("NPDES") permits, Section 402 permits are typically issued by states for the discharge of non-dredged and non-fill material.

33 U.S.C. § 1342(a)(5). These permits govern pollutants that are assimilated into receiving waters by establishing limits placed on the make-up of wastewater discharge. Once the EPA approves a state permitting program, states have exclusive authority to issue NPDES permits, although the EPA does have limited authority to review the issuance of such permits by states.

33 U.S.C. § 1342(d). All of the Appalachian States allegedly impacted by the EPA actions at issue in this litigation (Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia) have EPA-approved Section 402 permit authority.

Clean Water Act Section 303 Water Quality Standards

Section 303 of the Clean Water Act allocates primary authority for the development of water quality standards to the states. 33 U.S.C. § 1313. A water quality standard designates uses for a particular body of water and establishes criteria for protecting and maintaining those uses.

40 C.F.R. § 131.2 (2010). These standards can be expressed as a specific numeric limitation on pollutants or as a general narrative statement. See 40 C.F.R. § 131.3(b). While states have the responsibility to develop the water quality standards, the EPA reviews the standards for approval. 40 C.F.R §§ 131.4, 131.5. The EPA may promulgate water quality standards to the exclusion of a state only if (1) it determines that a state's proposed new or revised standard does not measure up to the Clean Water Act's requirements and the state refuses to accept EPA-proposed revisions, or (2) a state does not act, but in the EPA's view a new or revised standard is necessary. 33 U.S.C. § 1313(a)(2).

II. Factual Background*fn4

Plaintiff National Mining Association ("NMA") alleges that recent actions taken by the EPA and the Corps have unlawfully obstructed the Clean Water Act permitting processes for coal mining. Complaint ("Compl.") ¶ 2. The plaintiff identifies two series of documents that it asserts unlawfully changed the established permitting process: (1) the June 11, 2009 Enhanced Coordination Process ("EC Process") Memoranda, and (2) the April 1, 2010 Detailed Guidance Memorandum ("Guidance Memorandum"). Id. The plaintiff represents that its member companies are "not seeking to shirk their responsibilities under any environmental protection laws or regulations; rather, they are merely asking [the] EPA and the Corps to regulate" within the bounds of the law. Pl.'s PI Mem. at 41-42.

The plaintiff asserts that the EC Process memoranda formalized an "extraregulatory" practice that commenced in January 2009. Id. at 7. At that time, the EPA issued a series of letters to the Corps raising questions about the legality of Section 404 permits that, the plaintiff claims, the Corps was poised to issue imminently. Id. According to the plaintiff, the EC Process memoranda then "imposed substantive changes to the Section 404 permitting process by creating a new level of review by [the] EPA and an alternate permitting pathway not contemplated by the current regulatory structure." Id. The plaintiff represents that the EC Process utilizes the Multi-Criteria Integrated Resource Assessment ("MCIR Assessment") to screen pending Section 404 permits and determine which of those pending permits will proceed for standard review by the Corps and which will be subject to the EC process. Id. at 8. The plaintiff contends that once a permit is designated for the EC Process, it faces a burdensome review process wholly different than that contemplated by the Clean Water Act.*fn5 Id. Ultimately, the EPA announced, in September 2009, that through the MCIR Assessment it had identified 79 coal-related pending Section 404 permits that would be subjected to the EC process. Id. at 9.

Then, in April 2010, the EPA released its Guidance Memorandum in which, the plaintiff asserts, the EPA "made sweeping pronouncements regarding the need for water quality-based limits" in Section 402 and 404 permits. Id. The plaintiff maintains that the Guidance (1) effectively established a region-wide water quality standard based on conductivity levels it associated with adverse impacts to water quality, (2) was being used by the EPA to cause indefinite delays in the permitting process, and (3) caused various permitting authorities to insert the conductivity level into pending permits. Id. at 9-10. Further, the EPA used the Guidance to reopen previously issued permits to impose the conductivity limit, which, the plaintiff alleges "halt[s mining] projects in their tracks." Id. at 10-11. In contrast to the MCIR Assessment and the EC process, which apply only to pending Section 404 permits, the Guidance covers both Section 402 and 404 permits associated with surface mining projects in Appalachia. Defs.' Mem. re: Dismiss at 17 n.7.

III. The Defendants' Motion to Dismiss

A. Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of claims for which the complaint does not set forth allegations sufficient to establish the court's jurisdiction over the subject matter of the claims presented. Fed. R. Civ. P. 12(b)(1). In deciding a motion to dismiss challenging the Court's subject matter jurisdiction under Rule 12(b)(1), a court "must accept as true all of the factual allegations contained in the complaint" and draw all reasonable inferences in favor of the plaintiff, Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008), but courts are "not required . . . to accept inferences unsupported by the facts or legal conclusions that are cast as factual allegations." Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001). Further, the "court may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Ultimately, however, the plaintiff bears the burden of establishing the Court's jurisdiction, Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002), and where subject matter jurisdiction does not exist, "the court cannot proceed at all in any cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

B. Legal Analysis

The federal defendants assert three separate but related jurisdictional grounds for dismissal: (1) the lack of final agency action; (2) the plaintiff's claims are not ripe for review; and (3) the plaintiff's lack of standing. The Court will address each argument in turn.

1. Final Agency Action

The APA limits judicial review to "final agency action for which there is no other adequate remedy in court." 5 U.S.C. § 704. In other words, finality is a "threshold question" that determines whether judicial review is available. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006). The Supreme Court has explained that, "[a]s a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency's decision[-]making process," Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (quotation marks omitted), and second, "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow."*fn6 Id. at 178 (quotation marks omitted).

Here, the federal defendants assert that none of the EPA's actions-the MCIR Assessment, the EC Process, or the Guidance Memorandum-qualify as final agency action within the meaning of the APA, and that the plaintiff's claims must therefore be dismissed.

Defs.' Mem. re: Dismiss at 13. They maintain that the EPA used the MCIR Assessment to screen permit applications as only the first of several steps in the permitting process, and that the MCIR Assessment therefore did not mark the consummation of the decision-making process or give rise to legal consequences. Id. at 14. The federal defendants similarly argue that neither the EC Process nor the Guidance Memorandum mark the consummation of the decision-making process or give rise to any legal obligations. Id. at 15, 17. Throughout their filings with the Court, the federal defendants emphasize what seems to be their core finality argument: that the EPA's actions are not final because they do not mark the grant or denial of the various permits at issue. See id. at 15 (quoting Chem. Mfrs. Ass'n v. EPA, 26 F. Supp. 2d 180, 183 n.2 (D.D.C. 1998), where the Court stated: "the relevant question is not whether the action concludes a decision[-]making process . . . but whether the action concludes the decision[-]making process"), 17 ("As with the [MCIR] Assessment and the EC ...


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