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National Mining Ass'n v. Jackson

ELR Citation: 41 ELR 20317
Nos. 10-1220 et al., (D.D.C., 10/06/2011) (Walton, J.)

A district court held that EPA's Multi-Criteria Integrated Resource (MCIR) Assessment and Enhanced Coordination (EC) Process, adopted to screen mountaintop mining permits, violates the CWA and the APA. The MCIR Assessment involves EPA applying the CWA §404(b)(1) guidelines and directing the Corps on which permit applications must go through the EC Process for further review and coordination. The court ruled that in adopting the MCIR Assessment and the EC Process, EPA expanded its role in the issuance of §404 permits, thereby exceeding the statutory authority afforded to it by the CWA. Congress established a permitting scheme in which the Corps is to be the principal player and EPA is to play a lesser, clearly defined supporting role. Yet, the Corps was not involved in developing the MCIR Assessment, despite its statutory role as the permitting authority. In addition, the MCIR Assessment and the EC Process are legislative rules. The MCIR Assessment had a present, binding effect on the agencies and the permit applicants, and the EC Process imposes unequivocal requirements and reflects an obvious change in the permitting process. Accordingly, they should not have been established absent the notice-and-comment process required by the APA.