On Friday, the D.C. Circuit reversed Judge Reggie Walton’s decision from 2012 and affirmed EPA’s authority to adopt the “Enhanced Coordination Process” governing coordination with the Army Corps of Engineers in the processing of Clean Water Act permits. The Court also rejected challenges to its 2012 Final Guidance document regarding appropriate conditions on such permits.
The decision on the Enhanced Coordination Process seems rather obvious. As the Court noted:
this kind of inter-agency consultation and coordination is commonplace and often desirable. Indeed, restricting such consultation and coordination would raise significant constitutional concerns.
Indeed, one of the main goals of any President, and his or her White House staff, is to ensure that such consultation and coordination occurs in the many disparate and far-flung parts of the Executive behemoth. The right hand should know what the left hand is doing.
Tough to argue with that.
The Final Guidance is another matter. The Final Guidance provides an acceptable range of conductivity (300-500 microSiemens per centimeter) and advises EPA staff to recommend such levels. At the same time, however, EPA emphasized throughout the document that it has no binding legal effect and that permitting agencies are free to ignore it. To the Court, this was sufficient to conclude that issuance of the Guidance was not final agency action subject to judicial review.
As a legal matter, the Final Guidance is meaningless. As EPA acknowledged at oral argument, “The Guidance has no legal impact.” The Final Guidance does not tell regulated parties what they must do or may not do in order to avoid liability. The Final Guidance imposes no obligations or prohibitions on regulated entities. State permitting authorities “are free to ignore it.”
I don’t think it’s that easy. As the plaintiffs pointed out,
permit applicants (and state permitting authorities) really have no choice when faced with EPA “recommendations” except to fold. As plaintiffs see it, EPA will not issue the permit unless its recommendations are followed.
To the Court, this was not enough:
while regulated parties may feel pressure to voluntarily conform their behavior because the writing is on the wall about what will be needed to obtain a permit, there has been no “order compelling the regulated entity to do anything.”
As I noted in discussing Judge Walton’s decision, when guidance walks like a rule and talks like a rule, it should be subject to judicial review, just as a rule would be. The Court acknowledged that cases “have looked to post-guidance events to determine whether the agency has applied the guidance as if it were binding on regulated parties.” It will be interesting to see whether EPA in fact implements the Final Guidance as though it were a rule and what the Courts will do if that proves to be the case.
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