Friday, March 30, 2012
On March 23, 2012, the D.C. District Court issued an opinion in Mingo Logan Coal Co. v. EPA that raises a host of fascinating environmental and administrative law issues. The facts alone have attracted quite a bit of attention—this case is about mountaintop mining. There is plenty to say about this case, but here are some initial reactions focusing on two aspects of the opinion: the administrative law analysis; and the overall tone of the reasoning.
Mingo Logan, the petitioner in the case, obtained various permits from West Virginia for its mountaintop mining operations (including an NPDES permit that EPA initially opposed). It also applied to the Corps of Engineers for a Clean Water Act (CWA) section 404 permit to discharge material from its mine into nearby streams. EPA expressed concern over this permit and the accompanying EIS, but it didn't exercise its veto authority and the permit was eventually issued in 2007.
Two years later, EPA requested that the Corps withdraw the permit, stating that downstream water quality impacts hadn’t been adequately addressed. The Corps rejected that request, and in 2010, EPA announced its plans to withdraw the specification of most of the streams comprising Mingo Logan’s discharge area. The withdrawal became final in 2011, and Mingo Logan sued.
The Chevron Analysis
In her opinion on cross motions for summary judgment, Judge Amy Berman Jackson treated the issue—whether EPA exceeded its statutory authority under section 404(c) of the CWA by withdrawing the site specification after the Corps had issued the permit—according to the two-step Chevron analysis. The language under consideration: "The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site . . . ."
The court's Step One analysis set up a few strawmen of possible but unlikely meanings of this provision before knocking them down and turning to the statute as a whole. Here, the court expressed concern about the mechanics of a post-permit withdrawal. It's true that the agencies don't appear to have worked out those particulars, but it's not clear why that undermines the authority of the EPA to withdraw a specification. Aren't there plenty of situations where Congress delegates broad authority and leaves the particulars to the EPA? In any event, the court here created some Brand X ambiguities by not being entirely clear whether the statute unambiguously prohibits a post-permit withdrawal.
But the Step Two analysis is where things got especially interesting. First the court asked whether Chevron applied, given that two different agencies share responsibilities for 404 permitting (some courts and scholars treat this as a Step Zero issue instead). Judge Jackson determined that Chevron was not warranted, but she may have missed an opportunity for deeper analysis. Other courts have examined agencies' responsibilities more closely here and given deference to the agency with expertise. Arguably, the EPA has expertise when it comes to reasons a withdrawal would be warranted. The court decided Skidmore deference would be appropriate in this circumstance (again, slightly unusual to embed that in Chevron Step Two). But then it gave short shrift to the things that matter under Skidmore, like the consistency of the agency's interpretation over time (it's been in place since 1979). An agency's policy rationales also matter under Skidmore, but the court dismissed the EPA's policy statements on the matter while raising its own policy concerns about commerce. Ultimately, the court determined that EPA's interpretation is unreasonable; thus, the agency acted outside its statutory authority.
A Few Words About Tone
But here's what really stood out about the opinion: its tone was disrespectful and at times, caustic. Take this passage:
. . . EPA resorts to magical thinking. It posits a scenario involving automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!
No matter the substantive outcome or administrative law approach, it's disappointing to see a court treat one of the parties disrespectfully. Especially for issues that arouse such passion (jobs, mining, mountains, water), what is the impact on the perceived legitimacy of our system in the long-term when judicial rhetoric takes this kind of turn?
For some great insights, take a look at Dave Markell, Tom Tyler, and Sarah Brosnan’s forthcoming empirical piece on procedural preferences, trust, and the importance of the decisionmaker treating parties in a respectful way. The bottome line: it matters.
Please, let's aim for civil discourse. And let's model respectful behavior for our students.