30 April 2020

District Court: EPA’s Withdrawal of Clean Water Act Proposed Determination Is Within Agency’s Enforcement Discretion

On April 17, 2020, a federal district court dismissed a suit brought by environmental groups in the groups’ long-running challenge to the Pebble gold and copper mine in Alaska. On July 21, 2014, Region 10 of the U.S. Environmental Protection Agency (EPA) had published a Notice of Proposed Determination under the Clean Water Act (CWA) that concluded the discharge of dredge or fill material associated with mining project may have an “unacceptable adverse effect” on fisheries. In the Proposed Determination, invoking Section 404(c) of the CWA, EPA purported to preemptively prevent the U.S. Army Corps of Engineers (Corps) from issuing a permit to allow development of the mine. On July 31, 2019, EPA changed course and withdrew the 2014 Proposed Determination.

In challenging the withdrawal, environmental groups argued (1) that EPA’s withdrawal of the Proposed Determination should be treated as a proposed rulemaking and (2) that the determination was arbitrary and capricious, as the withdrawal did not acknowledge or consider the “substantive findings that development of the Pebble deposit … may have unacceptable adverse effects.” The district court disagreed. The court found that the 2014 Proposed Determination should not be treated as a rulemaking but, instead, as a sanction pursuant to the agency’s enforcement authority. The court notes that this distinction is critical, as Supreme Court precedent puts strict limits on lawsuits challenging a federal agency’s decision to not bring an enforcement action in any specific case. In analyzing the statutory and regulatory authority, the court found that while CWA section 404(c) authorizes EPA to veto a Corps permit, the statute does not mandate that EPA must invoke such authority every time EPA could do so. The court further found the regulations do not require the EPA Regional Administrator to publicly explain his decision to withdraw a proposed determination, which “is further indication that the decision to withdraw a proposed determination is committed to EPA’s discretion.”

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