Recently, the DC Circuit decided the case of National Mining Association v. McCarthy. Reversing the lower court, the court held that an “Enhanced Coordination Process” memo and guidance authored by EPA and the Corps of Engineers to coordinate their joint review of coal mining Clean Water Act, 33 U.S.C. §§ 1251, et seq. (“CWA”), water discharge permits was only a procedural rule and not a “final action” subject to review under the APA. The Court of Appeals concludes that the memo only enhances these agencies’ ability to coordinate the application of their duties under the CWA, and does not change their substantive statutory responsibilities.
Responding to the complaint that the memo was in fact a “legislative rule’ whose promulgation was subject to the APA and pre-enforcement review, the court refers to the case law in this area, which it describes as “sometimes byzantine”. The Court of Appeals notes that EPA acknowledged at oral argument that the memo has no legal impact. Therefore, the Court of Appeals concludes that it may not be the basis for an enforcement action against a regulated entity, and, as a “matter of law, state permitting authorities and permit applicants may ignore this final guidance without facing any legal consequences”. Accordingly, the question before the Court of Appeals was not whether judicial review was available, but “whether judicial review is available now”.
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