Rhode Island v. United States Environmental Protection Agency

United States Court of Appeals
For the First Circuit

No. 04-1513

STATE OF RHODE ISLAND,
Petitioner, Appellant,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
UNITED STATES ENVIRONMENTAL APPEALS BOARD,
Respondents, Appellees.

PETITION FOR REVIEW OF AN ORDER
OF THE UNITED STATES ENVIRONMENTAL APPEALS BOARD

Before

Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.

Tricia K. Jedele, Special Assistant Attorney General, with
whom Brian A. Wagner, Deputy Legal Counsel, Rhode Island Department
of Environmental Management, was on brief, for appellant.
Michael B. Heister, Attorney, Environment and Natural
Resources Division, with whom Thomas L. Sansonetti, Assistant
Attorney General, Environment and Natural Resources Division, John
C. Cruden, Deputy Assistant Attorney General, and Susmita Dubey,
Office of the General Counsel, United States Environmental
Protection Agency, were on brief, for appellees.
Wendy B. Jacobs, John M. Stevens, Randall Kromm, and Foley
Hoag LLP on brief for USGen New England, Inc., amicus curiae.

August 3, 2004
 SELYA, Circuit Judge. The state of Rhode Island seeks

interlocutory review of a decision by the Environmental Appeals

Board (the EAB) denying its motion to intervene in a pollution-

discharge permit proceeding. The case presents a threshold

question about the availability of judicial review with respect to

such interlocutory administrative determinations. We hold, as a

matter of first impression in this circuit, that the collateral

order doctrine applies to agency determinations. Here, however,

the order appealed from does not fit within the parameters of that

doctrine: the EAB proceedings are ongoing, and Rhode Island's

challenge to the intervention decision can (and should) be

adjudicated at the conclusion of the administrative proceedings.

Consequently, we dismiss the appeal for want of appellate

jurisdiction.

I. THE STATUTORY FRAMEWORK

The principal purpose of the Clean Water Act (the CWA) is

to "restore and maintain the chemical, physical, and biological

integrity of the Nation's waters." 33 U.S.C. § 1251(a); see also

Adams v. EPA, 38 F.3d 43, 47 (1st Cir. 1994). One of the ways in

which the CWA seeks to achieve this purpose is by authorizing a

national pollution discharge elimination system (NPDES). Under

this regime, persons contemplating the discharge of pollutants into

United States waters must obtain NPDES permits before doing so.

See 33 U.S.C. §§ 1311(a), 1342; see also P.R. Aqueduct & Sewer

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Auth. v. EPA, 35 F.3d 600, 601 (1st Cir. 1994). Such permits

govern, inter alia, the quantity and concentration of discharged

pollutants as well as the rate of discharge. See Arkansas v.

Oklahoma, 503 U.S. 91, 101-02 (1992) (citing pertinent statutory

and regulatory provisions).

NPDES permits may be issued either by the Environmental

Protection Agency (the EPA) or, in those states authorized to

administer their own NPDES programs, by a state agency (subject,

however, to EPA review). 33 U.S.C. § 1342. Since Massachusetts is

not a specially authorized state, we focus here on the EPA's

permitting procedures.

Once the EPA receives a permit application, its regional

administrator typically prepares a draft permit, invites comment,

and initiates a public hearing. 40 C.F.R. §§ 124.6, 124.10,

124.12. At the end of this process, the regional administrator

hands down a decision denying or granting the permit. Id. §

124.15. A granted permit ordinarily will carry conditions, which

may be of varying scope and severity. 33 U.S.C. § 1342(a). Any

person who has participated during the comment period may, within

thirty days, petition the EAB for review of the EPA's decision

(including review of the permit conditions). 40 C.F.R. §

124.19(a). That review is discretionary. Id. Should the EAB deny

review, the EPA-endorsed permit becomes administratively final.

Id. § 124.19(c).

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 If, however, the EAB elects to afford review, it gives

public notice to that effect. Id. It then sets a briefing

schedule and invites interested persons to participate as amici

(i.e., "friends" of the Board). Id. Only after an EAB

determination on the merits is the regional administrator

authorized to issue a final permit. Id. § 124.19(f)(1). Any

interested person can then petition for judicial review of the

EAB's actions (or any aspect thereof) in the appropriate circuit

court of appeals. 33 U.S.C. § 1369(b)(1)(F).

II. FACTUAL AND PROCEDURAL BACKGROUND

This case involves the Brayton Point power plant,

operated by USGen New England, Inc. (USGen) in Somerset,

Massachusetts. The plant sits on the shores of Mount Hope Bay, a

body of water lying partly within Rhode Island's borders. Heat is

a pollutant for CWA purposes, id. § 1362(6), and the plant's

cooling system discharges water into the bay at elevated

temperatures. According to the EPA, discharges of heated water

from the plant have detrimentally affected the bay's fish

population.

The NPDES permit for Brayton Point expired in 1998.

USGen applied for a renewed permit and, throughout the pendency of

the permitting procedures, the EPA undertook to address concerns

about the plant's discharge protocol. A draft permit was issued in

2002. Rhode Island played an active role during the comment

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period. On October 6, 2003, the EPA's regional administrator for

Region I handed down a proposed final NPDES permit for Brayton

Point's discharge system. The permit contained a series of new,

more stringent conditions. USGen filed a petition for

administrative review and requested an evidentiary hearing. Rhode

Island moved for leave to intervene in order to support the

proposed permit or, alternatively, for permission to participate as

an amicus.

The EAB responded by issuing a multi-part order. In re

USGen New Engl., Inc. Brayton Point Station, NPDES Appeal No. 03-

12, slip op. (Envtl. App. Bd. Feb. 19, 2004), available at

http://www.epa.gov/eab/orders/usgen.pdf. The order granted USGen's

petition for review, reserved decision on whether to hold an

evidentiary hearing, denied Rhode Island's motion to intervene

without prejudice (with the proviso that the motion could be

renewed in the event that the EAB subsequently decided to convene

an evidentiary hearing), granted Rhode Island amicus status, and

set a briefing schedule.

Rhode Island took an immediate appeal from the

conditional denial of its motion to intervene. We expedited review

and heard oral arguments on June 7, 2004. We now conclude that we

lack jurisdiction over Rhode Island's interlocutory appeal.

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III. APPELLATE JURISDICTION

Federal courts are courts of limited jurisdiction. Am.

Fiber & Finishing, Inc. v. Tyco Healthcare Group, 362 F.3d 136, 138

(1st Cir. 2004). Thus, they can hear cases only if and to the

extent that they are authorized to do so by statute. Bell v. New

Jersey, 461 U.S. 773, 777 (1983). With this in mind, we inspect

the hooks on which Rhode Island tries to hang our jurisdiction.

A. Section 1369(b)(1)(F).

Rhode Island's first response is to identify 33 U.S.C. §

1369(b)(1)(F) as the basis for appellate jurisdiction in this case.

This is a very frail hook. The statute provides:

Review of the Administrator's action . . . in
issuing or denying any permit under section
1342 of this title . . . may be had by any
interested person in the [appropriate] Circuit
Court of Appeals of the United States . . .
upon application by such person. Any such
application shall be made within 120 days from
the date of such . . . issuance or denial . .
. .

33 U.S.C. § 1369(b)(1)(F). By its plain terms, this provision

conditions the availability of judicial review on the issuance or

denial of a permit. In addition, the case law has construed the

provision in that manner. See, e.g., Appalachian Energy Group v.

EPA, 33 F.3d 319, 322 (4th Cir. 1999); City of Ames v. Reilly, 986

F.2d 253, 256 (8th Cir. 1993).

Given the statutory and regulatory scheme, this

construction defeats Rhode Island's first jurisdictional claim.

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Where a petition for administrative review has been timely filed,

the regional administrator issues or withholds a permit only at the

conclusion of the EAB review process. 40 C.F.R. § 124.19(f)(1).

This means that where EAB proceedings are ongoing — as they are

here — there has not as yet been an issuance or denial of a permit

sufficient to support the invocation of circuit court jurisdiction

under section 1369(b)(1)(F).

This reading of section 1369(b)(1)(F) comports with the

"strong presumption" that "judicial review [of an agency decision]

will be available only when agency action becomes final." Bell,

461 U.S. at 778. Agency action is considered final when it

represents the culmination of the agency's decisionmaking process

and conclusively determines the rights and obligations of the

parties with respect to the matters at issue. Bennett v. Spear,

520 U.S. 154, 178 (1997). Here, that point will not be reached

until the completion of proceedings before the EAB. Only then will

a final NPDES permit issue, concluding the EPA's decisionmaking

process and imposing real-world obligations. See 40 C.F.R. §

124.19(f)(1) (stating that, for purposes of judicial review, "final

agency action occurs when a final . . . NPDES . . . permit decision

is issued by EPA and agency review procedures under this section

are exhausted").

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 B. The Collateral Order Doctrine.

Rhode Island has a fallback position. Despite the

absence of final agency action in the traditional sense, Rhode

Island suggests that the EAB's order denying intervention is

amenable to immediate review under the so-called collateral order

doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

546 (1949) (describing a "small class" of orders that do not end

the proceedings below but should, for systemic reasons, be treated

as final and immediately appealable). This suggestion warrants

serious consideration.

We begin by stepping backward in time. The collateral

order doctrine was developed as a safety valve to provide a modicum

of relief from overly strict application of the requirement that

appellate courts review only final decisions of district courts.

See 28 U.S.C. § 1291 ("The courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the district

courts of the United States . . . ."); see also Digital Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) ("The

collateral order doctrine is best understood not as an exception to

the final decision rule laid down by Congress in § 1291, but as a

practical construction of it.") (excess punctuation omitted).

There remains some question whether the doctrine applies at all in

the administrative context, that is, whether an aggrieved party can

invoke the doctrine to obtain immediate appellate review of a

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collateral order that impacts, but does not end, an administrative

proceeding. See Augusta Bakery Corp. v. NLRB, 846 F.2d 445, 446-47

(7th Cir. 1988) (reserving the question); see also R.I. Dep't of

Envtl. Mgmt. v. United States, 304 F.3d 31, 44 (1st Cir. 2002)

(speculating that interlocutory review might be available for some

non-final administrative orders "based on an analogy to the

collateral order doctrine"). Today, we answer that question

affirmatively and hold that the collateral order doctrine does have

vitality with respect to judicial review of agency determinations.

We ground this holding on three lines of reasoning.

First and foremost, the Supreme Court has strongly

signaled, in a trilogy of cases, that Cohen's rationale carries

over to administrative determinations. In Mathews v. Eldridge, 424

U.S. 319 (1976), the Court concluded that an agency order

constituted a "final decision by the Secretary" for purposes of

judicial review. Id. at 328. Pertinently, Justice Powell wrote:

[T]he nature of the claim being asserted and
the consequences of deferment of judicial
review are important factors in determining
whether a statutory requirement of finality
has been satisfied. The role these factors
may play is illustrated by the intensely
"practical" approach which the Court has
adopted, Cohen v. Beneficial Ind. Loan Corp.,
. . . when applying the finality requirements
of 28 U.S.C. § 1291 . . . . To be sure,
certain of the policy considerations
implicated in . . . [§] 1291 cases are
different from those that are relevant here.
But the core principle that statutorily
created finality requirements should, if
possible, be construed so as not to cause

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 crucial collateral claims to be lost and
potentially irreparable injuries to be
suffered remains applicable.

Id. at 331 n. 11 (citations omitted).

In a subsequent case, the Supreme Court, albeit with only

meager discussion, actually applied the collateral order doctrine

to determine the reviewability of an agency order. See FTC v.

Standard Oil Co., 449 U.S. 232, 246 (1980) (concluding that the

order in question was not immediately reviewable). The Court

reinforced the thought that the collateral order doctrine was

administratively available in Bell, 461 U.S. at 778-79, in which it

intimated that the presence of an appealable collateral order might

allow a federal court to exercise jurisdiction over an otherwise

non-final agency determination. We agree with Judge Ginsburg, see

DRG Funding Corp. v. Sec'y of HUD, 76 F.3d 1212, 1220-21 (D.C. Cir.

1996) (Ginsburg, J., concurring), that the signposts erected by the

Court are reasonably clear. Given those signposts, we are loath to

strike off in a different direction.

Second, we see no overriding policy reason to apply a

wholly different rule of finality to review of agency

determinations. Both in litigation and in administrative

proceedings, insisting upon a final decision before appellate

intervention promotes efficiency by avoiding disruption, delay,

duplication, and needless expense. Such a rule also allows the

tribunal of first instance, be it a court or an agency, an

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opportunity to shepherd a case to an orderly and expeditious

conclusion without the interruptions that accompany piecemeal

review. Compare Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,

430 (1985) (describing value of § 1291 finality rule), with

Standard Oil, 449 U.S. at 242-43 (describing value of final agency

action requirement). The collateral order doctrine does not

frustrate this requirement, but, rather, embodies a practical,

common sense realization that, in a few instances, the costs of

finality may outweigh its benefits. See Johnson v. Jones, 515 U.S.

304, 311 (1995). That is as true in the administrative context as

in a purely judicial setting.

There may, of course, be an argument that finality has

added value in the administrative context. Cf. McKart v. United

States, 395 U.S. 185, 194 (1969) (noting that postponing judicial

review of agency action until exhaustion of administrative review

is "an expression of executive and administrative autonomy")

(quoting Louis L. Jaffe, Judicial Control of Administrative Action

425 (1965)). On the whole, however, the idea that preserving

crucial collateral claims and avoiding potentially irreparable harm

occasionally justifies construing statutorily created finality

requirements with a modicum of flexibility seems to apply with

equal (or, at least, nearly equal) force to the review of both

judicial and administrative orders. See Meredith v. Fed. Mine

Safety & Health Rev. Comm'n, 177 F.3d 1042, 1050-51 (D.C. Cir.

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1999); Cmty. Broad. of Boston, Inc. v. FCC, 546 F.2d 1022, 1024

(D.C. Cir. 1976) (per curiam).

Third, and finally, every circuit to have considered the

question to date has determined (often with little or no analysis)

that the collateral order doctrine applies to judicial review of

administrative determinations. See Osage Tribal Council v. U.S.

Dep't of Labor, 187 F.3d 1174, 1179 (10th Cir. 1999); Meredith, 177

F.3d at 1050-51; Carolina Power & Light Co. v. U.S. Dep't of Labor,

43 F.3d 912, 916 (4th Cir. 1995); Jim Walter Res., Inc. v. Fed.

Mine Safety & Health Rev. Comm'n, 920 F.2d 738, 744 (11th Cir.

1990) (per curiam); Donovan v. OSHRC, 713 F.2d 918, 922-23 (2d Cir.

1983); Donovan v. Oil, Chem., & Atomic Workers Int'l Union, 718

F.2d 1341, 1344-45 (5th Cir. 1983); Marshall v. OSHRC, 635 F.2d

544, 548 (6th Cir. 1980). We are not disposed to divide the

circuits in the absence of any compelling justification for

creating a split. See, e.g., Alternative Sys. Concepts, Inc. v.

Synopsys, Inc., ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-1406,

slip op. at 15]. There is none here.

These three reasons converge to make a solid case for the

deployment of the collateral order doctrine in judicial review of

administrative determinations. Accordingly, we hold that the

doctrine is generally applicable in that context.

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 C. The Denial of Intervention.

Against this backdrop, we turn to the question of whether

the EAB's order denying Rhode Island's motion to intervene

qualifies as an immediately appealable order under the collateral

order doctrine. To reach that safe harbor, the order must

"conclusively determine the disputed question, resolve an important

issue completely separate from the merits of the action, and be

effectively unreviewable on appeal from a final judgment." Coopers

& Lybrand v. Livesay, 437 U.S. 463, 468 (1978); accord In re

Recticel Foam Corp., 859 F.2d 1000, 1003-04 (1st Cir. 1988). The

order must meet all three of these requirements in order to qualify

for interlocutory review.

In this instance, the question of intervention plainly

satisfies the second prong of the test; the issue is separable from

the merits of the underlying proceeding. Cf. Williams v. Katz, 23

F.3d 190, 192 (7th Cir. 1994) (holding that the question of a

putative intervenor's status was "entirely separate from" the

underlying tort action). The first and third prongs, however,

comprise greater obstacles to Rhode Island's aspirations.

Under the first prong of the collateral order test, an

order must "conclusively determine the disputed question." Coopers

& Lybrand, 427 U.S. at 468. Tentative orders, subject to change

before the end of the proceedings, fall short of this benchmark.

Id. at 469 & n.11. This presents a potential problem here because

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the EAB denied Rhode Island's motion to intervene without prejudice

and indicated that it would allow the state to renew its motion if

an evidentiary hearing eventuated.

There is some authority suggesting that denials of

intervention without prejudice fail to satisfy Cohen's

"conclusiveness" requirement. See, e.g., United States v. City of

Milwaukee, 144 F.3d 524, 528-29 (7th Cir. 1998) (dismissing appeal

when district court had denied a motion to intervene on technical

grounds but at the same time had invited the appellant to refile).

Still, we easily can envision circumstances in which a denial of

intervention that is nominally "without prejudice" nonetheless may

be sufficiently conclusive to warrant immediate review. See, e.g.,

Conservation Law Found. of New Engl., Inc. v. Mosbacher, 966 F.2d

39, 41 (1st Cir. 1992). In this context, therefore, we are

reluctant to accord talismanic significance to a trier's use of the

term "without prejudice." Accord City of Milwaukee, 144 F.3d at

531 & n.14. Because the third prong of the collateral order test

offers a more clear-cut basis for resolving the issue, we leave the

questions surrounding the conclusiveness prong for another day.

This brings us to the third prong of the test:

unreviewability. An order flatly denying a motion to intervene in

a judicial proceeding is an immediately appealable collateral

order. See 6 James Wm. Moore, Moore's Federal Practice ¶ 24.24[1],

at 24-90 to 24-92 (3d ed. 2004); see, e.g., Pub. Serv. Co. v.

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Patch, 136 F.3d 197, 204 (1st Cir. 1998) (reviewing an order

denying intervention claimed as of right under Rule 24(a)). The

central rationale for permitting immediate review is that once

intervention has been denied, the putative intervenor "cannot

appeal from any subsequent order or judgment in the proceeding."

Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 524

(1947). Thus, in the absence of immediate appellate review, a

denial of intervention becomes, in Cohen terms, "effectively

unreviewable."

A denial of intervention in an EAB proceeding carries

critically different consequences. As said, a party who is refused

intervention in a court case cannot thereafter appeal from a final

judgment. 6 Moore's Federal Practice, supra ¶ 24.24[1], at 24-92

& n.5.4 (collecting cases). Under the CWA, however, "any

interested person," whether or not a party to the permit

proceedings before the EAB, is entitled to judicial review of the

final agency action (the regional administrator's issuance or

denial of a permit).1 See 33 U.S.C. § 1369(b)(1). While courts

have read this statute to incorporate, at a minimum, the injury-in-

1
This is a fairly typical provision in federal administrative
schemes. See, e.g., 26 U.S.C. § 9011 (permitting judicial review
of certain actions of the Federal Election Commission upon petition
"by any interested person"); 33 U.S.C. § 2717 (authorizing judicial
review of regulations promulgated under the Oil Pollution Act "upon
application by any interested person"); see generally 5 U.S.C. §
702 ("A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof.").

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fact requirement for Article III standing, see, e.g., Am. Forest &

Paper Ass'n v. EPA, 154 F.3d 1155, 1158 (10th Cir. 1998);

Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 578 (D.C. Cir.

1980), judicial review is not restricted to the parties in the EAB

proceeding.

For present purposes, this distinction looms large.

Assuming that Rhode Island meets the threshold "interested person"

requirement — if it does not, then it hardly can complain about the

denial of intervention — it will be entitled to appeal from the

EPA's final permitting decision, even without intervenor status.

See 33 U.S.C. § 1362(5) (defining "person" to include states). In

the course of that appeal, the state can challenge not only the

EAB's merits decision but also its decision to deny intervention.

Cf. 5 U.S.C. § 704 ("A preliminary, procedural, or intermediate

agency action or ruling not directly reviewable is subject to

review on the review of the final agency action."). Therefore, the

cases authorizing collateral review of denials of intervention in

judicial proceedings have scant persuasive force here.

We are guided, instead, by the Supreme Court's opinion in

Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987).

There, the district court denied a neighborhood group's motion to

intervene as of right and granted its motion for permissive

intervention while placing restrictions on the group's ability to

conduct discovery and assert new claims for relief. Id. at 373.

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The group prosecuted an immediate appeal. In due course, the

Supreme Court held that the grant of intervention, though severely

circumscribed, was not an immediately appealable collateral order.

Id. at 375. It emphasized the fact that the intervenor, although

limited as to the scope of its involvement in the litigation,

retained the power to appeal any final judgment and, in the

process, could attack the conditions imposed by the lower court.

Id. at 376. Distinguishing the case from those involving outright

denials of intervention, the Court concluded that the intervenor

could "obtain effective review of its claims on appeal from final

judgment." Id. Consequently, the appellants failed to satisfy the

third prong of the collateral order test. Id. at 375.

This emphasis on the ability vel non to prosecute an

efficacious end-of-case appeal after a denial of intervention has

not escaped notice. Precedent in this and other circuits draws the

same distinction. See, e.g., Eng v. Coughlin, 865 F.2d 521, 524-27

(2d Cir. 1989); Kartell v. Blue Shield of Mass., Inc., 687 F.2d

543, 550 (1st Cir. 1982).

We find this line of authority compelling. The judicial

review provisions of the CWA ensure that the denial of intervention

will neither extinguish nor curtail Rhode Island's right to appeal

upon the issuance of a final permit. This means, of course, that

there is nothing unreviewable about the EAB's denial of

intervention.

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 Of course, Stringfellow advisedly phrased the

requirement, for purposes of the third prong of the collateral

order test, in terms of whether an order was amenable to "effective

review." 480 U.S. at 375 (emphasis supplied). The use of this

adjective recognizes that, occasionally, an order may be

technically subject to end-of-case review but that the appealing

party's interests may not be capable of vindication at that late

date. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985)

(discussing need for immediate review of interlocutory orders

refusing to grant qualified immunity); Abney v. United States, 431

U.S. 651, 660-62 (1977) (discussing need for immediate review of

interlocutory orders rejecting claims of double jeopardy).

This qualification does not help Rhode Island. In

Stringfellow, the Supreme Court held that the putative intervenors'

interest in taking a more robust role in the proceedings, however

substantial, would not be "irretrievably lost in the absence of an

immediate appeal." 480 U.S. at 376 (citation omitted). So it is

here: any harm that Rhode Island might suffer as a result of its

relegation to amicus status can be adequately redressed on appeal

from a final permitting decision. We explain briefly.

We have equated a showing of effective unreviewability

with a showing of irreparable harm arising out of the postponement

of appellate review. In re Recticel Foam, 859 F.2d at 1004. Rhode

Island has made no such showing here. Although the EAB denied

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Rhode Island's motion to intervene, the state retains the ability

to take part in the proceedings as an amicus. That status confers

upon it the same right to file briefs on both the evidentiary

question and the merits as the parties possess. See In re USGen,

supra, slip op. at 9-10. Unless there is an evidentiary hearing —

and in that contingency, Rhode Island is free to renew its motion

to intervene — those filings will end the parties' substantive

participation. It is, therefore, unsurprising that Rhode Island

has been unable to identify any cognizable harm that it stands to

suffer at this stage of the proceedings by virtue of participating

as an amicus rather than as an intervenor.2 Even were we to accept

Rhode Island's (counterfactual) assertion that it has been

prejudiced by the distinction, we see no basis for concluding that

this harm could not be vindicated adequately on judicial review of

a final permitting decision. It follows inexorably that there is

no theoretical foundation upon which to rest an invocation of the

2
Rhode Island argues that an amicus does not have the same
right to raise new issues as a party. Petitioner's Br. at 12.
That may be true in a court case, see, e.g., Lane v. First Nat'l
Bank, 871 F.2d 166, 175 (1st Cir. 1989), but there is nothing in
the CWA's regulatory framework that ordains such a result.
Furthermore, the EAB order explicitly provides that all
participants in the proceedings are limited to those issues already
raised in USGen's petition, drawing no distinction in that regard
between amici and intervenors. See In re USGen, supra, slip op. at
9 n.14, 10 n.15. Rhode Island also suggests that it will not be
permitted to file, or object to, motions. Petitioner's Reply Br.
at 12. But there is nothing in the administrative scheme that
restricts motion practice to parties and intervenors, and the EAB
has indicated a willingness to allow amici to participate fully in
the adjudication of all substantive motions.

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collateral order doctrine. See Stringfellow, 480 U.S. at 376;

Kartell, 687 F.2d at 550.

To say that Rhode Island's interests will not be

irretrievably prejudiced in the absence of an immediate appeal is

not to say that postponing review until the occurrence of final

agency action is cost-free. By refusing to intercede at this

stage, we introduce the prospect of duplicative proceedings should

the denial of intervention eventually be deemed improvident. That

sort of cost is real, but it is an almost inevitable byproduct of

the finality rule in ordinary litigation as well as in

administrative adjudication. Cf. R.R. Donnelley & Sons Co. v. FTC,

931 F.2d 430, 431 (7th Cir. 1991) ("If the cost, delay, and

aggravation of litigation made an order final, the distinction

between interlocutory and final decisions would collapse, and

courts of appeals would be deluged."). The finality requirement

embodies a "preference that some erroneous trial court rulings go

uncorrected until the appeal of a final judgment, rather than

having litigation punctuated by piecemeal appellate review."

Richardson-Merrell, 472 U.S. at 430 (citation and internal

quotation marks omitted). This case is no exception.

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IV. CONCLUSION

We need go no further.3 We do not minimize Rhode

Island's interest in the purity of the waters of Mount Hope Bay —

but Rhode Island has the ability to protect that interest

adequately on an end-of-case appeal from whatever final permitting

decision eventuates. Thus, its appeal fails to meet the

unreviewability prong of the collateral order test. As said,

unreviewability is a sine qua non for immediately appealable

collateral orders. See Stringfellow, 480 U.S. at 375; Kartell, 687

F.2d at 550. Accordingly, we lack jurisdiction, in the present

posture of the case, to hear and determine Rhode Island's complaint

3
There is another potential ground for deeming the collateral
order doctrine inapplicable in this case: the precise (and
somewhat unorthodox) wording of the jurisdictional grant contained
in 33 U.S.C. § 1369(b)(1)(F). Unlike, say, section 704 of the
Administrative Procedure Act, 5 U.S.C. § 704 (which provides
generally for judicial review of any "final agency action") or the
counterpart provision found in the Clean Air Act, 42 U.S.C. §
7607(b)(1) (which provides for judicial review of regulations,
orders, "or any other final action[s] of the Administrator"), the
CWA restricts judicial review to actions taken "in issuing or
denying any permit." 33 U.S.C. § 1369(b)(1)(F). Because judicial
review is triggered only by actions "issuing or denying" permits
and not by final agency actions generally, it is at least arguable
that section 1369(b)(1)(F) may not be amenable to a pragmatic
construction that allows for any judicial review before a final
permitting decision is made. Cf. Appalachian Energy Group, 33 F.3d
at 322 (suggesting that the CWA's text allows courts "to review
only those categories of agency action identified" in the statute
itself). This is an intellectually interesting point but because
we decide that the collateral order doctrine, even if available,
does not apply in this instance, we need not probe it more deeply.

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that the EAB improperly prevented it from intervening in the

permitting proceedings.4

The petition for judicial review is dismissed without

prejudice for want of appellate jurisdiction.

4
On July 23, 2004, while this opinion was at the printer's,
the EAB denied USGen's motion for an evidentiary hearing, scheduled
oral argument on the merits of the permitting decision, and granted
Rhode Island the right to participate in those arguments (albeit as
an amicus). Viewed collectively, these orders reinforce the
conclusions reached in this opinion.

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