Panel reverses district court
In a significant victory for the Environmental Protection Agency, the D.C. Circuit Court of Appeals reversed U.S. District Judge Reggie B. Walton and found that EPA and the Army Corps of Engineers acted within their legal authority when they adopted an Enhanced Coordination Process to review mountaintop mining "valley fill" permits in Appalachia (National Mining Association v. McCarthy, 12-5310):
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.
The court also said that a guidance document adopted by EPA and the Corps was not a final agency action and thus not judicially reviewable at this time.
The judges on the panel were Thomas B. Griffith, Brett M. Kavanaugh and Sri Srinavasan. Kavanaugh wrote the decision.
http://www.eswr.com/docs/cts/dcc/12-5310-1502014.pdf Opinion from ESWR and from D.C. Circuit site
Greenwire story (Jeremy P. Jacobs and Manuel Quiñones)
Rep. Nick Rahall (D-W.V.) slams decision (press release)
Walton will consider four extra-record documents in case (ESWR, 4/20/2012)
For coverage of the D.C. Circuit arguments, which appeared in the latest issue of ESWR, please send an email to poplarav AT gmail.com