Tag Archives: National Mining Association v. Jackson

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 …… More

EPA Loses Another One: Enhanced Mountaintop Mining Reviews Struck Down

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already expressed skepticism about EPA’s mountaintop removal guidance. Last week, in the latest decision in National Mining Association v.… More

The Battle Over Guidance Is Joined Again: EPA Finalizes Its Mountaintop Removal Guidance

mountain_topThe fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining. As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff’s preliminary injunction, signaled that he thought that EPA’s Interim Guidance probably was a legislative rule that should have gone through notice and comment rule-making.… More

Deja Vu All Over Again: Time For Another Rant About Guidance

As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is not supposed to announce new rules – only clarifying interpretation of existing rules. However,… More