EPA Loses Another Battle in the War Over Guidance: Judge Walton Rejects EPA’s Final Guidance on Mountaintop Removal Permits Under the CWA

Yesterday, Judge Reggie Walton issued his final decision in National Mining Association v. Jackson. The decision is another blow to EPA’s efforts to regulate through guidance rather than notice and comment rule making.

The decision is not a surprise to anyone who has been following the case. As I noted early last year, Judge Walton telegraphed his views when he stated that even EPA’s Interim Guidance “qualified as final agency action because … it is … being applied in a binding manner.”

Nothing in the intervening 18 months caused Judge Walton to alter his views. EPA obviously understood the message from Judge Walton’s prior decision and other cases, such as Appalachian Power, holding that guidance which functions as regulation will be treated as such by the court. EPA thus states repeatedly in the Final Guidance that it is not binding and “does not impose any obligations on private parties.” Judge Walton was having none of it.

Review of the Final Guidance itself and of the post-implementation evidence before the Court makes clear that the Final Guidance … has caused EPA field offices and the state permitting authorities to believe that permits should and will be denied if its “suggestions” and “recommendations” are not satisfied.

Judge Walton found Appalachian Power essentially on all fours with this case, quoting extensively:

[W]hatever [the] EPA may think of its Guidance generally, the elements of the Guidance petitioners challenge consist of the agency’s settled position, a position it plans to follow in reviewing State-issued permits, a position it will insist State and local authorities comply with in setting the terms and conditions of permits issued to petitioners, a position EPA officials in the field are bound to apply.

The entire decision is worth review. Although I am not a fan of guidance and agree with the decision here, I actually found it less persuasive than I expected. I assumed that the record would support a conclusion that EPA is treating the Final Guidance as binding, but the evidence Judge Walton cited was not fully compelling to me. If EPA appeals, I’d expect the decision to be affirmed, but I don’t think it’s a certainty.

I do think that the final Guidance is functionally a regulation. Moreover, there is little doubt that EPA and state regulatory agencies make far too much use of guidance and practically treat guidance documents as regulation. Whatever the record here, NMA v. Jackson stands as a useful check on agency overreaching in this area.

Duck

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