Marten Law on National Mining Ass'n v. Jackson: No Means No--EPA Told Again Not to Regulate Through Guidance

Marten Law on National Mining Ass'n v. Jackson: No Means No--EPA Told Again Not to Regulate Through Guidance

Jeff Kray   By Jeff Kray, Partner, Marten Law Group PLLC

In this Emerging Issues Analysis, Jeff Kray of Marten Law PLLC analyzes two decisions in National Mining Ass'n v. Jackson which, taken together, determine that EPA's mountain-top mining Guidance is invalid on both procedural and substantive grounds. The decisions narrow EPA's role in regulating water quality impacts from mining.

Excerpt from the Commentary:

The U.S. District Court for the District of Columbia has ruled that U.S. EPA overstepped its authority under the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA) and infringed on state authority under those statutes when it issued a "Final Guidance" for so-called mountain-top removal coal mining. National Mining Ass'n v. Jackson (National Mining). Specifically, the Final Guidance called out certain CWA permits for additional environmental review and to implement (among other things) acceptable "conductivity" levels for streams impacted by coal mining. The district court's recent decision follows a decision in October 2011 by the same judge, Reggie Walton, that EPA exceeded its statutory authority and violated the Administrative Procedure Act (APA) by relying on interpretive guidance -- rather than a regulation -- to modify the CWA permitting process for mining activity. Taken together, Judge Walton's two decisions in National Mining determine that EPA's mountain-top mining Guidance is invalid on both procedural and substantive grounds. The decisions thus narrow EPA's role in regulating water quality impacts from mining.

National Mining concerns CWA permits for coal-mining activities in Appalachia. The CWA establishes a permitting scheme for pollutants discharged into bodies of water, and coal mining operations typically must obtain both CWA and SMCRA permits. Coal-mining activities generally require a "dredge and fill" permit issued under CWA Section 404. The U.S. Army Corps of Engineers (Corps) regulates discharges of dredged or fill material to "navigable waters" under CWA Section 404. The Corps has sole authority to issue Section 404 permits; however, it must do so according to guidelines developed in conjunction with EPA under Section 404(b). The Corps and EPA developed regulations to implement Section 404(b)(1), and these regulations specifically provide that no "modifications to the basic application, meaning or intent of these guidelines shall be made without rulemaking" by EPA under the APA. CWA Section 404(c) provides EPA with limited veto power over the Corps Section 404 permitting decisions; however, EPA must publish findings for its reasons when vetoing a permit. Finally, CWA Section 404(q) directs the Corps to coordinate with other federal agencies to make a Section 404 permitting decision, "to the maximum extent practicable," within 90 days of publication of the application notice.

Jeff Kray's practice focuses on water quality, water resources, and complex environmental litigation, including Clean Water Act permitting and regulatory compliance, and CERCLA (Superfund) site remediation. He has represented public and private clients throughout the west. Over a nearly 20 year career, Jeff has litigated administrative hearings, conducted numerous trials, and appeared in federal and state appeals. Jeff regularly advises businesses in water quality permit compliance and defense matters, stormwater pollution prevention, hazardous waste spill prevention and cleanup, and cost recovery litigation. He also frequently consults with water right owners and purchasers on preserving, acquiring, and transferring water rights. He has assisted a broad range of clients, including manufacturers, commercial and timber land owners, interstate transporters, lumber mills, ports, water suppliers, and municipalities.

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