National Mining Association, et al. v. McCarthy

Case Updates

The Court ruled that the Clean Water Act does not prohibit the joint EPA/Corps “Enhanced Coordination”process for review of Section 404 permits, and that industry's challenge to EPA's electrical conductivity guidance for Section 402 permits is not yet ripe because there is no final agency action that can be reviewed.

The U.S. Chamber urged the the D.C. Circuit to affirm the district court and hold that the Environmental Protection Agency (EPA) violated the Administrative Procedure Act by issuing substantive changes to the Clean Water Act regulatory program without going through the proper rulemaking procedures. The fact that the EPA attempted to circumvent the APA by labeling its action “guidance” rather than rulemaking is not conclusive. As the Chamber argues in its brief, agencies “cannot avoid the requirements of the APA simply by titling substantive and binding changes to their regulatory programs as 'guidance.’” In this case, the so-called “guidance” had immediate and binding effect on regulated entities by changing the obligations of state permitting authorities. As the Chamber argues, “EPA’s decision to proceed here by guidance, rather than rulemaking, deprives it of valuable information from regulated parties and reduces the quality of the Agency’s decision. It also subjects American business to abrupt and unpredictable regulatory changes – which, by undermining stability and certainty, stymies the future investments necessary to sustain stable and reliable growth of the national economy.”