Judge Reggie Walton, a federal court judge in Washington, D.C. has recently ruled that the EPA has exceeded its statutory authority and violated the Administrative Procedure Act (APA) by relying on “interpretive guidance” rather than a regulation to modify the permitting process for coal mining activity under the Clean Air Act.
The case is National Mining Association v. EPA.
In 2009 and 2010, EPA issued a series of guidance documents regarding agency review of CWA permits for so-called mountain-top removal coal mining. Specifically, EPA used interpretive guidance to call out certain CWA permits for additional environmental review and to implement (among other things) acceptable “conductivity” levels for streams impacted by coal mining. The National Mining Association (“NMA”) sought a preliminary injunction to block enforcement of the guidance. Judge Walton denied the injunction in January 2011, but intimated that NMA was likely to succeed on the merits of its challenge. At the parties’ request, the court agreed to a bifurcated hearing schedule under which the court would first hear challenges to the additional environmental review process and then hear challenges to the conductivity guidance. The court’s most recent decision concerns the first issue only.
Judge Walton granted summary judgment to NMA and invalidated EPA’s “process” guidance. A ruling on the conductivity guidance is expected next year. The broader implications of the court’s ruling are that EPA cannot shortcut the administrative process by using guidance in lieu of regulations to change environmental rules.
Following a recent trend, the district court for the D.C. Circuit becomes the latest federal court to conclusively rule that EPA overstepped its authority by regulating with interim guidance documents. EPA has, in recent years, tended to favor the use of interpretive guidance where it can, as the rulemaking process is typically long and arduous. These recent decisions represent a growing consensus among the courts that rulemaking, though arduous, is the only lawful way for EPA to effect substantive regulatory changes.
In short, the EPA can’t skirt the law to impose its own anti-coal political agenda on the mining industry.