Nat'l Mining Ass'n v. McCarthy

• Decision Date: 11 July 2014
• Docket Number: 12–5311.,Nos. 12–5310,s. 12–5310
• Citation: 758 F.3d 243
• Parties: NATIONAL MINING ASSOCIATION, et al., Appellees v. Gina McCARTHY, Sued in her Official Capacity, Administrator, U.S. Environmental Protection Agency, et al., Appellants. Hazard Coal Corporation, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

758 F.3d 243

NATIONAL MINING ASSOCIATION, et al., Appellees

v. Gina McCARTHY, Sued in her Official Capacity, Administrator, U.S. Environmental Protection Agency, et al., Appellants.Hazard Coal Corporation, et al., Appellees.

Nos. 12–5310, 12–5311.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 2014.

Decided July 11, 2014.

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, Attorney 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: GRIFFITH, KAVANAUGH, and SRINIVASAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, 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 authoritywhen 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. See30 U.S.C. § 1256. The Department of the Interior's Office of Surface Mining Reclamation and Enforcement oversees Department of Interior-approved state programs for issuing those permits. See id. §§ 1211, 1251–56. Those permits are not at issue in this case.

Under the Clean Water Act, mining projects that result in the discharge of soil or other pollutants into navigable waters must meet additional requirements. See33 U.S.C. § 1311(a). As relevant here, those mining projects must comply with state “water quality standards.” See id. § 1311(b)(1)(C). State water quality standards identify the proper uses of water bodies (recreation, irrigation, etc.) and provide “water quality criteria” to measure the health of those water bodies. An example of water quality criteria is a requirement that “no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.” W. VA. CODE R. § 47–2–3.2.i. Under the Clean Water Act, a mining project may not violate the relevant state water quality standards. See33 U.S.C. § 1342(b)(1)(A); 40 C.F.R. § 122.44(d)(1).

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. See33 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. Id. § 1344(c); see Mingo Logan Coal Co. v. EPA, 714 F.3d 608, 612–13 (D.C.Cir.2013). So the Corps and EPA have complementary roles in the Section 404 process.

The second is a permit under Section 402 of the Act. See33 U.S.C. § 1342. Section 402 permits—known also as National Pollutant Discharge Elimination System or NPDES permits—ensure that mining projects do not result in any other pollutants damaging States' water bodies. As relevant here, States decide whether to issue those permits, but EPA may object to issuance of the permit if EPA concludes that the permit would not meet state water quality standards or other requirements of the Clean Water Act. See id. § 1342(d). So States and EPA both have a role in Section 402 permits.

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...