Thursday, April 12, 2012

When Agencies Can't Get Along

Last time, I posted some thoughts on Mingo Logan Coal Co. v. EPA, in which the D.C. District Court held that EPA exceeded its statutory authority when, after the Army Corps of Engineers issued a section 404 permit, EPA withdrew the underlying site specification.  I considered the administrative-law and civil discourse aspects of the opinion in the previous post, but another interesting aspect of the case is the relationship between EPA and the Army Corps of Engineers. 

Throughout the permitting process, EPA expressed concerns about the environmental impacts of Mingo Logan’s mountaintop mining project, but it never exercised its veto authority over the specification of disposal sites.  Two years after the Corps issued the permit, however, EPA sent a letter to the Corps requesting that the latter revoke the permit.  Only after the Corps refused did EPA take matters into its own hands by withdrawing the site specification—a post-permit step the court held outside the bounds of EPA’s statutory authority.

Mingo Logan involved the Clean Water Act, but environmental law relies on interagency relationships at every turn.  Moreover, these relationships exist horizontally between federal agencies as well as vertically between federal and state agencies.  Jody Freeman and Jim Rossi document a number of such relationships here, as does Eric Biber here

Lately I’ve been working on a project that asks how courts should respond when agencies conflict.  That circumstance can put the usual reasons for judicial deference—superior political accountability and expertise—in tension with one another so that it’s not immediately obvious which agency ought to prevail.  While it’s unusual for two agencies to be opposing parties in court, it does happen occasionally, and it seems to me that there are a number of approaches a court might take to sort out the dispute.

But in most instances, agency conflicts lurk in the background of court cases.  That is, the action agency gets sued and its behavior is the focus of judicial review.  That’s how the Mingo Logan case worked; although the court described the relationship between the Corps and EPA, that relationship had little, if any, bearing on the court’s analysis.  Rather, the court evaluated EPA’s action in the usual way—here, in terms of its conformity to the statutory mandate—with deference accorded as justified.  This has also been the approach of the D.C. Circuit faced with the Yucca Mountain controversy, and there are many more examples.  Although I’ve concluded that fidelity to statute is the proper approach in such circumstances, I admit that it’s a little unsatisfying.  Is there any way to account for another agency’s involvement? Has anyone seen any novel approaches to this issue?

- Emily Meazell

http://lawprofessors.typepad.com/environmental_law/2012/04/when-agencies-cant-get-along.html

Cases, Current Affairs, Energy | Permalink

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