National Mining Association v. Gina McCarthy , 758 F.3d 243 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2014 Decided July 11, 2014
No. 12-5310
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
Consolidated with 12-5311
Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-01220)
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.
2
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,
Atorney 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,
3
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.
4
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
5
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
authority when 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. See 30 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.
6
Under the Clean Water Act, mining projects that result in
the discharge of soil or other pollutants into navigable waters
must meet additional requirements. See 33 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. See 33 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. See 33
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. See
33 U.S.C. § 1342. Section 402 permits – known also as
National Pollutant Discharge Elimination System or NPDES
7
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 the information in the permit
application to the guidelines the Corps must consider when
issuing permits. (The guidelines identify, among other things,
mining practices that may damage the environment.) Using
the Enhanced Coordination Process, EPA identifies permits
that could run afoul of the guidelines and notifies the Corps.
Over a 60-day period, subject to extensions, EPA and the
Corps, along with any interested parties, then discuss those
permit applications. The Corps then decides whether to issue
the permits.
In 2011, EPA also issued a Final Guidance document
related to, among other things, Section 402 permits. The
Final Guidance explained that recent peer-reviewed studies
had found that surface coal mining raises the salinity of
States’ waters. That elevated salinity increases the ability of
the water bodies to conduct electricity – that is, it increases
their conductivity. According to the studies, certain levels of
conductivity endanger aquatic life. The Final Guidance
therefore advises EPA staff to ask state permitting authorities
8
to assess the potential for elevated conductivity in proposed
Section 402 permits. For the Appalachian region, the Final
Guidance recommends that water conductivity levels not
exceed 300-500 μS/cm (microSiemens per centimeter).
The States of West Virginia and later Kentucky, along
with coal mining companies and trade associations, brought a
variety of challenges in federal district court. Collectively,
the lawsuits challenged both the Enhanced Coordination
Process and the Final Guidance document. Arrayed against
those plaintiffs were EPA, the Army Corps of Engineers, and
several intervenor environmental organizations.
First, plaintiffs argued that the Enhanced Coordination
Process violates the Clean Water Act. They also contended
that the Enhanced Coordination Process is a legislative rule
and therefore should not have been promulgated without
notice and comment under the Administrative Procedure Act.
Second, they argued that the Final Guidance violates the
Clean Water Act and the Surface Mining Control and
Reclamation Act. In a series of rulings, the District Court
granted summary judgment to plaintiffs. The rulings
invalidated the Enhanced Coordination Process and the Final
Guidance. We review the District Court’s grant of summary
judgment de novo.
II
We first address plaintiffs’ challenges to the Enhanced
Coordination Process adopted by EPA and the Army Corps of
Engineers for coordination on Section 404 permits.
A
Plaintiffs argue that the Enhanced Coordination Process
violates the Clean Water Act. In particular, relying on a form
9
of the expressio unius canon, plaintiffs point out that
Congress has explicitly mandated EPA participation at certain
stages of the Section 404 permitting process: for example, to
co-write guidelines under Section 404(b), to veto one aspect
of a permit under Section 404(c), to minimize delays under
Section 404(q), and to exempt certain discharges from the
permitting process under Section 404(l). See 33 U.S.C.
§ 1344(b), (c), (q), (l). Those explicit grants of statutory
authority to EPA in the Section 404 process, according to
plaintiffs, mean that Congress silently intended to restrict
EPA’s involvement in the Corps’ permitting process outside
of those four circumstances.
We reject that argument. To begin with, nothing in the
Enhanced Coordination Process has changed the statutory
criteria on which the Section 404 permitting decisions are
based. And nothing in the Enhanced Coordination Process
has changed the substantive statutory responsibilities of the
two agencies involved in the Section 404 permitting process.
The Corps still makes the ultimate decision whether to
approve the permit. EPA still makes the decisions on the
disposal sites. So plaintiffs’ objection here is simply to
enhanced consultation and coordination between two federal
agencies. But no statutory provision forbids EPA from
consulting with or coordinating with the Corps, or vice versa.
And we will not read into that statutory silence an
implicit ban on inter-agency consultation and coordination.
After all, this kind of inter-agency consultation and
coordination is commonplace and often desirable. Indeed,
restricting such consultation and coordination would raise
significant constitutional concerns. Under Article II of the
Constitution, departments and agencies in the Executive
Branch are subordinate to one President and may consult and
coordinate to implement the laws passed by Congress. See
10
U.S. CONST. art. II, § 1, cl. 1 (Executive Power Clause); U.S.
CONST. art. II, § 3 (Take Care Clause). The two agencies here
are both executive agencies that operate under the direction
and supervision of the single President. Putting aside
independent agencies, none of which is involved here, the one
President is responsible and accountable for the entirety of the
Executive Branch. See Free Enterprise Fund v. Public
Company Accounting Oversight Board, 130 S. Ct. 3138,
3152-56 (2010). Indeed, one of the main goals of any
President, and his or her White House staff, is to ensure that
such consultation and coordination occurs in the many
disparate and far-flung parts of the Executive behemoth. The
right hand should know what the left hand is doing. Given
the backdrop of Executive Branch tradition, sound
government practice, and constitutional principle, we will not,
as plaintiffs request, read into this statute an implicit
congressional intent to restrict consultation and coordination
between two executive agencies. As this Court, in an opinion
by Judge Wald, once stated when considering consultations
among Executive Branch officers, our “form of government
simply could not function effectively or rationally if key
executive policymakers were isolated from each other and
from the Chief Executive. Single mission agencies do not
always have the answers to complex regulatory problems”
and need “to know the arguments and ideas of policymakers
in other agencies as well as in the White House.” Sierra Club
v. Costle, 657 F.2d 298, 406 (D.C. Cir. 1981). Put another
way: In a “single Executive Branch headed by one
President,” we do not lightly impose a rule “that would deter
one executive agency from consulting another about matters
of shared concern.” Empresa Cubana Exportadora de
Alimentos y Productos Varios v. Department of the Treasury,
638 F.3d 794, 803 (D.C. Cir. 2011). So it is here.
11
In short, the Clean Water Act does not explicitly or
implicitly bar the Enhanced Coordination Process adopted by
the Army Corps of Engineers and EPA.1
B
Plaintiffs argue, however, that the memorandum
initiating the Enhanced Coordination Process is a legislative
rule that was promulgated without the required notice and
comment. Legislative rules have the “force and effect of law”
and may be promulgated only after public notice and
comment. INS v. Chadha, 462 U.S. 919, 986 n. 19 (1983)
(internal quotation marks omitted). But the APA does not
require notice and comment for interpretive rules, general
1
Plaintiffs also argue that the Enhanced Coordination Process
is incompatible with the Corps’ regulations for processing Section
404 permit applications. Those regulations state that Corps
engineers “will be guided by” certain time limits in evaluating
permit applications, including a target that “engineers will decide
on all applications not later than 60 days after receipt of a complete
application” unless one of six exceptions applies. 33 C.F.R.
§ 325.2(d)(3). It is true that the memorandum initiating the
Enhanced Coordination Process indicates that the process may take
more than 60 days to complete. However, one of the six exceptions
to the 60-day target applies when “[i]nformation needed by the
district engineer for a decision on the application cannot reasonably
be obtained within the 60-day period.” Id. § 325.2(d)(3)(vi). The
Corps tells us that its engineers may need more than 60 days to
determine, in conjunction with EPA, that surface mining will not
degrade waterways covered by the Clean Water Act. In any event,
the Corps’ regulations are aspirational time targets rather than
mandatory requirements. See 47 Fed. Reg. 31,794, 31,796 (July 22,
1982) (time targets in Section 325.2(d)(3) are “goals”); Auer v.
Robbins, 519 U.S. 452, 461 (1997) (agency’s interpretation of own
regulation is “controlling unless ‘plainly erroneous or inconsistent
with the regulation.’”).
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statements of policy, and rules of organization, procedure, or
practice. See 5 U.S.C. § 553(b)(3)(A).
We need not dally on this issue. The “critical feature” of
a procedural rule “is that it covers agency actions that do not
themselves alter the rights or interests of parties, although it
may alter the manner in which the parties present themselves
or their viewpoints to the agency.” James V. Hurson
Associates, Inc. v. Glickman, 229 F.3d 277, 280 (D.C. Cir.
2000) (internal quotation marks omitted). That description
neatly covers the Enhanced Coordination Process. The
Enhanced Coordination Process is a rule of procedure and
thus did not require notice and comment.
III
Plaintiffs also challenge the Final Guidance. They
contend that the Final Guidance exceeds EPA’s authority
under the Clean Water Act and the Surface Mining Control
and Reclamation Act. According to plaintiffs, the Final
Guidance’s instruction to EPA staff to recommend limitations
on mining projects – including that mining projects meet the
conductivity levels identified in scientific studies –
impermissibly interjects extra-statutory roadblocks into
States’ Section 402 permitting process.
We may review agency action under the APA only if it is
“final.” 5 U.S.C. § 704. One might think that an agency
memo entitled “Final Guidance” would be final. But that
would be wrong, at least under the sometimes-byzantine case
law. An agency action is final only if it is both “the
consummation of the agency’s decisionmaking process” and a
decision by which “rights or obligations have been
determined” or from which “legal consequences will flow.”
Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal
quotation marks omitted). EPA concedes that the Final
13
Guidance is the consummation of EPA’s decisionmaking
process. But EPA characterizes the Final Guidance as a
general policy statement that has no “legal consequences.”
Therefore, according to EPA, we cannot review its legality at
this time; EPA says that judicial review must wait until a
permit applicant has had a permit denied and seeks review of
that permit denial.
To analyze EPA’s reviewability argument, we need to
take a step back. The APA divides agency action, as relevant
here, into three boxes: legislative rules, interpretive rules, and
general statements of policy. A lot can turn on which box an
agency action falls into. In terms of reviewability, legislative
rules and sometimes even interpretive rules may be subject to
pre-enforcement judicial review, but general statements of
policy are not. See, e.g., Whitman v. American Trucking
Associations, 531 U.S. 457, 477-49 (2001) (reviewable
interpretive rule); Abbott Laboratories v. Gardner, 387 U.S.
136, 149-51 (1967) (reviewable legislative rule); National
Park Hospitality Association v. Department of the Interior,
538 U.S. 803, 809-11 (2003) (non-reviewable policy
statement). Legislative rules generally require notice and
comment, but interpretive rules and general statements of
policy do not. See 5 U.S.C. § 553. Legislative rules generally
receive Chevron deference, but interpretive rules and general
statements of policy often do not. See United States v. Mead
Corp., 533 U.S. 218 (2001); Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837 (1984).
So given all of that, we need to know how to classify an
agency action as a legislative rule, interpretive rule, or general
statement of policy. That inquiry turns out to be quite
difficult and confused. It should not be that way. Rather,
given all of the consequences that flow, all relevant parties
should instantly be able to tell whether an agency action is a
14
legislative rule, an interpretive rule, or a general statement of
policy – and thus immediately know the procedural and
substantive requirements and consequences. An important
continuing project for the Executive Branch, the courts, the
administrative law bar, and the legal academy – and perhaps
for Congress – will be to get the law into such a place of
clarity and predictability. See generally John F. Manning,
Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 893 (2004)
(“Among the many complexities that trouble administrative
law, few rank with that of sorting valid from invalid uses of
so-called ‘nonlegislative rules.’”).
For today, however, our far more modest task is to apply
existing precedents on reviewability to EPA’s Final Guidance.
Under the case law, legislative rules (and sometimes
interpretive rules) may be subject to pre-enforcement review.
Plaintiffs contend that the Final Guidance is a legislative rule
and thus subject to pre-enforcement review now. But in
EPA’s view, the Final Guidance is a general statement of
policy, which means it is not subject to pre-enforcement
review. As the parties frame it, the reviewability issue turns
on one question: Is the Final Guidance a legislative rule or a
general statement of policy?
To answer that question, we must know what makes
something a legislative rule or general statement of policy.
To simplify a bit, we offer the following overview: An
agency action that purports to impose legally binding
obligations or prohibitions on regulated parties – and that
would be the basis for an enforcement action for violations of
those obligations or requirements – is a legislative rule. An
agency action that sets forth legally binding requirements for
a private party to obtain a permit or license is a legislative
rule. (As to interpretive rules, an agency action that merely
interprets a prior statute or regulation, and does not itself
15
purport to impose new obligations or prohibitions or
requirements on regulated parties, is an interpretive rule.) An
agency action that merely explains how the agency will
enforce a statute or regulation – in other words, how it will
exercise its broad enforcement discretion or permitting
discretion under some extant statute or rule – is a general
statement of policy.
But those general descriptions do not describe tidy
categories and are often of little help in particular cases. So in
distinguishing legislative rules from general statements of
policy, our cases have focused on several factors.
The most important factor concerns the actual legal effect
(or lack thereof) of the agency action in question on regulated
entities. See Catawba County v. EPA, 571 F.3d 20, 33-34
(D.C. Cir. 2009); General Electric Co. v. EPA, 290 F.3d 377,
382 (D.C. Cir. 2002); see also National Association of Home
Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005). Here,
that factor favors EPA. As a legal matter, the Final Guidance
is meaningless. As EPA acknowledged at oral argument,
“The Guidance has no legal impact.” Oral Arg. at 12:12. The
Final Guidance does not tell regulated parties what they must
do or may not do in order to avoid liability. The Final
Guidance imposes no obligations or prohibitions on regulated
entities. State permitting authorities “are free to ignore it.”
Id. at 12:19. The Final Guidance may not be the basis for an
enforcement action against a regulated entity. Moreover, the
Final Guidance may not be relied on by EPA as a defense in a
proceeding challenging the denial of a permit. And the Final
Guidance does not impose any requirements in order to obtain
a permit or license. As a matter of law, state permitting
authorities and permit applicants may ignore EPA’s Final
Guidance without facing any legal consequences. Cf. Holistic
Candlers & Consumers Association v. FDA, 664 F.3d 940,
16
944 (D.C. Cir. 2012) (FDA warning letter not final agency
action because it “communicates the agency’s position on a
matter” but “compels action by neither the recipient nor the
agency”) (internal quotation marks omitted).
Another factor in our case law concerns the agency’s
characterization of the guidance. See Center for Auto Safety
v. National Highway Traffic Safety Administration, 452 F.3d
798, 806 (D.C. Cir. 2006); General Electric, 290 F.3d at 382.
The Final Guidance repeatedly states that it “does not impose
legally binding requirements.” J.A. 1052; see also id. at
1054, 1080. The Final Guidance also notes that it is “not
intended to direct the activities of any other Federal, State or
local agency or to limit the exercise of their legal authority.”
Id. at 1053. On its face, the Final Guidance disclaims any
intent to require anyone to do anything or to prohibit anyone
from doing anything. To be sure, the Final Guidance may
signal likely future permit denials by EPA; if so, those permit
denials can be challenged at that time, and EPA will not be
able to rely on the Final Guidance in defending a permit
denial.
Plaintiffs counter that this Court has referred to similar
agency caveats in guidance documents as “boilerplate.” See
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C.
Cir. 2000). In Appalachian Power, this Court found that an
EPA guidance document was a legislative rule despite the
guidance document’s caveat denying its compulsory nature.
See id. But in doing so, we examined the document as a
whole and noted that “the entire Guidance, from beginning to
end – except the last paragraph – reads like a ukase. It
commands, it requires, it orders, it dictates.” Id. Here, the
caveats run throughout the document, and more to the point,
the document is devoid of relevant commands. See, e.g., J.A.
1080 (Final Guidance is “not legally or practically binding on
17
the Corps’ determinations of whether a particular project
complies” with Section 404(b)(1) guidelines).
Our cases also have looked to post-guidance events to
determine whether the agency has applied the guidance as if it
were binding on regulated parties. In many cases, of course,
we will not yet know the answer to that question because the
recently issued guidance will have been implemented in only
a few instances. So we will get only an early snapshot. In
any event, in this case, the sparse record before us does not
suggest that the agency has applied the Final Guidance as if it
were binding on regulated parties.
Plaintiffs nonetheless point to EPA’s statutory role within
the permitting programs and argue that permit applicants (and
state permitting authorities) really have no choice when faced
with EPA “recommendations” except to fold. As plaintiffs
see it, EPA will not issue the permit unless its
recommendations are followed. But while regulated parties
may feel pressure to voluntarily conform their behavior
because the writing is on the wall about what will be needed
to obtain a permit, there has been no “order compelling the
regulated entity to do anything.” Independent Equipment
Dealers Association v. EPA, 372 F.3d 420, 428 (D.C. Cir.
2004) (internal quotation marks and alteration omitted).
States and permit applicants may ignore the Final Guidance
without suffering any legal penalties or disabilities, see Oral
Arg. at 40:16, and permit applicants ultimately may be able to
obtain permits even if they do not meet the recommendations
in the Final Guidance. And EPA agrees that the Final
Guidance “has no legal impact” and that state permitting
authorities are “free to ignore it.” Id. at 12:12.
To be clear, we reiterate what we have said before:
“When the agency applies [a general statement of] policy in a
18
particular situation, it must be prepared to support the policy
just as if the policy statement had never been issued.” Pacific
Gas & Electric Co. v. Federal Power Commission, 506 F.2d
33, 38 (D.C. Cir. 1974).
We have considered all of plaintiffs’ arguments for
obtaining review now of the Final Guidance and find them
unpersuasive under the current case law. The question is not
whether judicial review will be available but rather whether
judicial review is available now. The Final Guidance is not a
final agency action subject to pre-enforcement review. We
therefore do not decide plaintiffs’ challenges to the legality of
the Final Guidance at this time.
***
We conclude that the Enhanced Coordination Process
memorandum is a procedural rule that EPA and the Corps had
authority to enact under the Clean Water Act. Under our case
law, we conclude that the Final Guidance is not a final agency
action subject to review at this time. We therefore reverse the
District Court’s grant of summary judgment and remand to
the District Court with instructions to grant judgment for
defendants on the Enhanced Coordination Process and to
dismiss the challenge to the Final Guidance.
So ordered.