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National Mining Association v. Jackson

ELR Citation: 42 ELR 20165
Nos. 10-1220 et al., (D.D.C., 07/31/2012) (Walton, J.)

A district court held that EPA overstepped its statutory authority under the CWA and SMCRA when it issued guidance on Appalachian surface coal mining permits. EPA argued that the guidance was not final agency action and, thus, not subject to judicial review. But the court disagreed, holding that the final guidance is a de facto legislative rule. It represents the consummation of the EPA’s decisionmaking process, and it is being implemented as binding and having a practical effect on the permitting process for new Appalachian surface coal mining projects. In addition, the court possesses original jurisdiction to review the final guidance, the case is ripe, and the mining interests challenging the guidance have standing. As for the merits, the guidance violates SMCRA and the CWA. Once EPA has given its assent to approve a state SMCRA permitting program, SMCRA affords it no further authority in the oversight or administration of the SMCRA regime. And even assuming the existence of overlap between SMCRA and the CWA, it is not EPA that is responsible for working with the SMCRA permitting authorities on matters where overlap exists. EPA also overstepped the limitations on its CWA authority by setting a regionwide water quality criterion for conductivity, thereby infringing on the state's role under CWA §303, and by insisting that draft permits contain a pre-issuance reasonable potential analysis, thus usurping the state's primary authority to determine when and if a discharge has the "reasonable potential" to exceed water quality standards. The guidance, therefore, must be set aside.