UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RANDY C. HUFFMAN,
in his official
capacity as Cabinet
Secretary of the
West Virginia Department
of Environmental Protection,
and acting on behalf of the,
STATE OF WEST VIRGINIA
Plaintiffs,
v. Civil Action No. 2:10-01189
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and
LISA P. JACKSON, in her
official capacity as Administrator,
United States Environmental
Protection Agency, and
UNITED STATES ARMY CORPS OF ENGINEERS and
JOHN M. MCHUGH,
in his official capacity as
Secretary of the Army, and
LIEUTENANT GENERAL ROBERT L. VAN ANTWERP,
in his official capacity as United States
Army Chief of Engineers and Commanding General
of the United States Army Corp of Engineers,
Defendants
MEMORANDUM OPINION AND ORDER
Pending are defendants’ motion to transfer this action
to the United States District Court for the District of Columbia
(D.C. District Court) filed October 27, 2010, and a motion to
intervene as defendants filed by putative intervenors Sierra
Club, West Virginia Highlands Conservancy, Coal River Mountain
Watch, Ohio Valley Environmental Coalition, Kentuckians for the
Commonwealth, Southern Appalachian Mountain Stewards, and
Statewide Organizing for Community Empowerment filed November 16,
2010.
I.
A. Litigation in the D.C. District Court
On July 20, 2010, the National Mining Association
(“NMA”), a mining industry trade association, instituted an
action against the defendants in the D.C. District Court (“NMA
action”). The complaint casts the NMA action as
challeng[ing] a series of EPA and Corps actions that
have unlawfully obstructed Clean Water Act permitting
processes for coal mining. NMA brings this action under
Section 702 of the Administrative Procedure Act
("APA"), 5 U.S.C. § 702, seeking review of the June 11,
2009 Enhanced Coordination Process ("EC Process")
memoranda . . . and the April 11, 2010 Detailed
Guidance Memorandum (“Detailed Guidance”) . . . as
contrary to the APA, the Clean Water Act ("CWA"), 33
U.S.C. § 1251 et seq., the Surface Mining Control and
Reclamation Act ("SMCRA"), 30 U.S.C. § 1201 et seq.,
and other federal law. As explained in the Factual
Background section, infra, these memoranda
substantially and illegally amend the statutory and
regulatory permitting processes for coal mining that
form the backbone of coal companies' expectations in
planning to extract coal for our nation's power supply,
particularly for those companies that require "valley
fills" for their coal mining operations.
(D.C. Action Compl. ¶ 2 (“In January 2009, in a marked departure
from prior, longstanding EPA practice . . . EPA initiated an
2
extra-regulatory review process for CWA Section 404 permits that
had no basis in the Corps' or EPA's codified procedures.”)).1
NMA alleges that “the EC Process will apply to Section 404 permit
applications in six states and three EPA regions in the eastern
United States.” (Id. ¶ 58).
NMA identifies EPA's “first step” in the EC Process as
a screening device for all pending Section 404 permit
applications. Those pending applications now number over 200.
This screening, referred to as the Multi-Criteria Integrated
Resource Assessment (“MCIR Assessment”), sets a threshold of
acceptable mining impacts. Application of the MCIR Assessment is
designed to generate a list of permits that do not meet the
threshold. If the threshold is not met, the further requirements
of the EC Process are apparently used for permit review purposes
rather than the usual Corps regulatory process.
The NMA action alleges that “EPA's development and use
of the MCIR Assessment for evaluating Section 404 permit
applications and identifying them for application of EC Process
is not embodied or otherwise provided for in any properly
1
Section 404 of the CWA covers discharges of dredged or fill
material into the waters of the United States. 33 U.S.C. §
1344(a). The Secretary of the Army is authorized to issue
permits for the discharges. Id. The Secretary of the Army has
delegated his authority on the matter to the Corps. See 30 C.F.R.
§ 325.2(a).
3
promulgated regulation, nor has it been subjected to public
notice and comment.” (Id. ¶ 63). As of September 11, 2009, EPA
had used the MCIR Assessment to screen off 79 coal-related
Section 404 permit applications for further scrutiny under the EC
Process. The screened permit applications involved mining
projects in Ohio, Pennsylvania, Tennessee, Virginia, Kentucky,
and West Virginia.
The NMA action asserts 11 claims against defendants as
follows:
Count One: The EC Process constitutes a legislative
rule that was not properly promulgated under the APA in
violation of section 5532;
Count Two: The MCIR Assessment offends section 553 for
the same reason;
Count Three: The Detailed Guidance offends section 553
for the same reason;
Count Four: The EC Process violates the CWA inasmuch
as it is, inter alia, disruptive of the Congressional
division of authority between the Corps and EPA in
Section 404 permitting decisions;
Count Five: The MCIR Assessment is contrary to the CWA
insofar as it attempts, inter alia, to usurp the Corps’
exclusive role at the onset of the Section 404
permitting process;
Count Six: The Detailed Guidance is contrary to the CWA
inasmuch as it purports to, inter alia, impose an
2
Title 5 U.S.C. § 553(b) and (c) respectively provide for
notice of proposed agency rule making and an opportunity to
comment. Id.; United States v. Gould, 568 F.3d 459, 476 (4th
Cir. 2009).
4
impermissible water quality standard on the states
contrary to both the CWA and EPA’s regulatory
interpretation of that statute;
Count Seven: The aforementioned, impermissible water
quality standard, which supposes that in-stream
conductivity levels above 500 microSiemens per
centimeter are likely to be associated with adverse
water quality impacts, constitutes an “impermissible
and irrational administrative presumption[];” (NMA
Compl. ¶ 124).
Count Eight: The Detailed Guidance is contrary to . . .
[the National Environmental Policy Act of 1969
(“NEPA”)] inasmuch as it purports to establish NEPA
procedures applicable to coal mining without, inter
alia, an opportunity for public review;
Count Nine: The Detailed Guidance is contrary to the
Surface Mining Control and Reclamation Act (“SMCRA”)
inasmuch as it lacked public notice and comment prior
to implementation and interferes with SMCRA’s grant of
primary regulatory authority to the Office of Surface
Mining (“OSM”) and the primacy states3;
Count Ten: The EC Process, MCIR Assessment, and the
Detailed Guidance are, inter alia, unlawful, arbitrary,
capricious, and an abuse of discretion; and
Count Eleven: The EC Process, MCIR Assessment, and
Detailed Guidance are ultra vires.
Based upon the claims alleged, NMA seeks, inter alia,
(1) a declaration that EPA and the Corps violated the APA in
3
The term “primacy states” refers to those states that are
authorized to operate their own surface mining control and
reclamation programs. See Ohio River Valley Environmental
Coalition, Inc. v. Kempthorne, 473 F.3d 94, 97 (4th Cir. 2006)
(“Once the Secretary [of the Interior] approves a state program,
the State has achieved ‘primacy’ and has exclusive jurisdiction
to regulate surface coal mining within its borders.”); Molinary
v. Powell Mountain Coal Co., Inc., 125 F.3d 231, 234 (4th Cir.
1997).
5
issuing and implementing the EC Process, the MCIR Assessment, and
the Detailed Guidance; (2) a declaration that those three
documents violate federal laws including the CWA, NEPA, and
SMCRA; (3) a declaration that EPA has exceeded its statutory
authority in the Section 404 permitting process, (4) vacatur of
the EC Process, MCIR Assessment, and Detailed Guidance; (5) an
injunction prohibiting the enforcement, application, or
implementation of the EC Process, MCIR Assessment, and Detailed
Guidance; and (6) directions to the Corps to process all pending
Section 404 permit applications in accordance with the governing
procedures in existence prior to EPA’s alleged extra-statutory
and regulatory actions. The NMA action was assigned to the
Honorable Reggie B. Walton, United States District Judge.
On September 17, 2010, NMA moved for a preliminary
injunction. On September 27, 2010, defendants moved to dismiss
based upon a variety of grounds. On October 13, 2010, the
following putative intervenors sought to join the NMA action as
defendants: Sierra Club, West Virginia Highlands Conservancy,
Coal River Mountain Watch, Ohio Valley Environmental
Coalition, Kentuckians for the Commonwealth, Southern
Appalachian Mountain Stewards, and Statewide Organizing for
Community Empowerment. NMA opposed the request. On November 8,
2010, Judge Walton granted the intervention request in a brief
6
order, noting that the intervenors had “demonstrated cognizable
interests that may be impacted by the outcome of this case, and
have shown that these interests will not be adequately protected
by the federal defendant[s].” National Mining Assoc. v. Jackson,
No. 10-1220, slip op. at 2 (D.D.C. Nov. 8, 2010).
B. Litigation in the Eastern District of Kentucky
On August 10, 2010, Gorman Company, LLC, Kycoga
Company, LLC, Black Gold Sales, Inc., Kentucky Union Company, and
Hazard Coal Corporation instituted an action against the same
defendants named herein in the Eastern District of Kentucky
(“Gorman action”). Defendants moved to transfer the Gorman
action to the D.C. District Court for consolidation with the NMA
action. Plaintiffs opposed the request.
On December 9, 2010, the Honorable Gregory F. Van
Tatenhove, United States District Judge, stayed the Gorman
action, noting it “name[d] the same defendants and challenge[d]
the same regulatory” practices as the NMA action. Gorman Co.,
LLC v. United States Environ. Protec. Agency, No. 10-228, slip
op. at 3 (E.D. Ky. Dec. 9, 2010) (“Indeed, the eleven counts
contained in the NMA’s complaint and the instant Complaint are
identical, and the same relief is sought.”). Judge Tatenhove
7
held the transfer decision in abeyance pending Judge Walton’s
disposition of defendants’ motion to dismiss the NMA action. Id.
at 4 (noting “it makes sense . . . to reserve fully considering
and ruling on the Motion to Transfer until after the motion to
dismiss in the . . . [NMA] action has been resolved.”).
On October 18, 2010, the Kentucky Coal Association
(“KCA”) instituted an action in the Eastern District of Kentucky
against the United States Environmental Protection Agency and its
administrator, Lisa P. Jackson, both of whom are named as
defendants herein (“KCA action”). That same day the Commonwealth
of Kentucky moved to intervene as a plaintiff. On October 20,
2010, the Honorable Amul R. Thapar, United States District Judge,
granted intervention. On November 12, 2010, Judge Thapar granted
a similar intervention request filed by the City of Pikeville,
Kentucky.
On December 6, 2010, Judge Thapar transferred the KCA
action to Judge Tatenhove. Noting that the KCA action contained
only two counts, Judge Tatenhove nevertheless observed that those
claims were the “same or similar” to counts appearing in the
eleven-count NMA action. Kentucky Coal Ass’n v. United States
Environ. Protec. Agency, No. 10-125, slip op. at 3 (E.D. Ky. Dec.
9, 2010). On December 9, 2010, Judge Tatenhove thus stayed the
8
KCA action. Id., slip op. at 4 (“As a result, it makes sense for
this Court to reserve fully considering and ruling on the Motion
to Transfer . . . until after the motion to dismiss in the D.C.
action has been resolved.”).
C. Litigation in the Southern District of West Virginia
On October 6, 2010, plaintiffs, the West Virginia
Department of Environmental Protection (“DEP”), and its cabinet
secretary, Randy C. Huffman, instituted an action in this court
(“DEP action”). It names the same defendants as those found in
the NMA action. An analysis of the complaints in DEP and NMA
actions reveal further similarities:
NMA COMPLAINT DEP COMPLAINT COMPARISON
Count One Count One Materially Identical
Count Two No Analogue Count N/A
Count Three Count Two Materially Identical
Count Four Count Three Materially Identical
Count Five No Analogue Count N/A
Count Six Count Four Overlapping and Alike
Count Seven Count Five Overlapping and Alike
Count Eight Count Six Overlapping and Alike
Count Nine Count Seven Materially Identical
Count Ten No Analogue Count N/A
Count Eleven No Analogue Count N/A
9
Additionally, the relief sought in the DEP and NMA complaints
overlaps almost entirely. (Compare NMA Compl. at 39-40, with DEP
Compl. at 50-51).
On October 27, 2010, defendants moved pursuant to 28
U.S.C. § 1404(a) to transfer this action to the D.C. District
Court for consolidation with the NMA action. Defendants assert
transfer and consolidation is warranted “because all of the
complaints challenge the same agency actions, they raise common
questions of law and fact, they assert identical claims, and they
seek identical relief.” (Memo. in Supp. at 2). Defendants note
in particular that the DEP action “challenges . . . [efforts] of
federal agencies headquartered in the District of Columbia, and
challenges documents that were executed in the District of
Columbia.” (Id. at 3). They also assert that “[v]irtually all
of the operative facts alleged in the [DEP] Complaint occurred in
the District of Columbia.” (Id.)
Plaintiffs oppose the transfer request. They contend
that the DEP action challenges not only certain documents
promulgated by EPA but also the application of those documents to
West Virginia permit requests and programs by EPA and Corps
regional offices, with numerous associated meetings and program
reviews occurring in Charleston, West Virginia. They also state
10
that the EC Process and the Detailed Guidance “are only the
starting point” for their claims, which they assert are primarily
intended to “defend the State’s mining regulatory programs and
its primary right to interpret its own narrative water quality
standard” among other things. (Pls.’ Resp. at 3). They
additionally assert, inter alia, as follows: (1) plaintiffs are
located in Charleston, (2) a substantial part of the property to
be mined is found in this district, (3) transfer would prevent a
sovereign state from litigating within its own borders a
controversy involving its programs, policies, and standards; and
(4) plaintiffs’ forum choice is entitled to significant weight.
Plaintiffs further assert that having to litigate this action in
the D.C. District Court “would place an onerous administrative
and financial burden on” them. (Id. at 11). They offer no
details as to why that is the case.
II.
A. The Standards Governing a Section 1404(a) Transfer
Section 1404(a) governs the transfer request. It
provides pertinently as follows:
For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any
11
civil action to any other district . . . where it might
have been brought.
Id. A section 1404(a) transfer is dependent upon the “weigh[ing]
. . . [of] a number of case-specific factors.” Stewart
Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
“Factors commonly considered . . . include: (1) ease of access to
sources of proof; (2) the convenience of parties and witnesses;
(3) the cost of obtaining the attendance of witnesses; (4) the
availability of compulsory process; (5) the possibility of a
view; (6) the interest in having local controversies decided at
home; and (7) the interests of justice.” AFA Enters., Inc. v.
American States Ins. Co., 842 F. Supp. 902, 909 (S.D. W. Va.
1994) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
(1947)).
The party requesting transfer shoulders a significant
burden. Id. at 909 (citations omitted). One reason is that the
plaintiff’s forum selection is accorded considerable weight.
Id.; Collins v. Straight, Inc., 748 F.2d 916, 921 (4th Cir.
1984). The Supreme Court long ago observed that “unless the
balance is strongly in favor of the defendant, the plaintiff's
choice of forum should rarely be disturbed.” Gilbert, 330 U.S.
at 508.
12
The Supreme Court has, however, suggested at least one
tipping factor favoring transfer that would suffice to overcome
plaintiff’s choice: “To permit a situation in which two cases
involving precisely the same issues are simultaneously pending in
different District Courts leads to the wastefulness of time,
energy and money that . . . [§] 1404(a) was designed to prevent.”
Continental Grain Co. v. The FBL-585, 364 U.S. 19, 25-26 (1960).
The rule in Continental Grain has been restated more recently.
See also Ferens v. John Deere Co., 494 U.S. 516, 531 (1990)
(noting that Supreme Court precedent had “made quite clear” that
it is a waste of time, money, and resources to allow two cases
with the same issues to pend simultaneously in different
districts).
B. Analysis
Plaintiffs concede that they could have permissibly
filed the DEP action in the D.C. District Court. It is thus
apparent that transfer is a possibility. Most of the foregoing
factors, though, are inapt. The first five are aimed at
avoiding, or ameliorating, the time and expense devoted to the
discovery and trial processes. Defendants adroitly observe that
these five considerations are neutral inasmuch as the judicial
13
inquiry in these cases will be based exclusively on the
administrative record. While plaintiffs are unwilling to concede
the point, they venture only that “some sort of judicial fact-
finding” will be necessary. (Pls.’ Memo. in Oppos. at 15 n.8).
Their similar prognostication that “there may be other factors
justifying extra-record discovery” is equally imprecise. (Id.)
The court thus deems the first five factors to be near neutral.
Plaintiffs devote a great deal of discussion to the
supposed interest in having local controversies decided at home.
For example, their response is littered with references to
meetings, comments, and discussions that have taken place in or
near Charleston as a part of the regulatory process. The
recitation resembles a contacts analysis typically encountered in
the personal jurisdiction domain. They also discuss how the
challenged memoranda have impacted West Virginia public policies
respecting water quality and mining activities.4
4
A related contention offered by plaintiffs merits brief
mention. They suggest that consolidation of the NMA, Gorman, and
KCA actions with this case would be inappropriate because “this
case was brought by a State and its administrative agency to
defend the State’s programs, public policies, and water quality
standards, which are unique to the State of West Virginia.”
(Pls.’ Memo. in Oppos. at 17).
As noted, the Commonwealth has successfully intervened in
the KCA action. Conceding that fact in a footnote, plaintiffs
nevertheless contend that the differences between the DEP action
and Commonwealth’s intervention complaint would militate against
consolidation. As observed further in, even if formal
(continued...)
14
These assertions are not without some weight but they
are unduly restrictive. Irrespective of where the parties have
met in the past, or the particular effects that defendants’
policies have had in West Virginia, those prosecuting the NMA,
Gorman, KCA, and DEP actions have all targeted, inter alia, the
Detailed Guidance and EC Process. If those central memoranda are
vacated by judicial decree, be it in the D.C. District Court,
this court, or some other, their effects on West Virginia’s water
quality and surface mining policies are practically at an end
absent a successful appeal. This factor is thus also properly
regarded as neutral, or at least insubstantial.
The weighing process thus resolves to an analysis of
the significance of plaintiffs’ forum choice as compared to the
interests of justice relating in particular to the coordinated
disposition of nearly identical litigation pending in different
districts.5 Plaintiffs’ forum choice, weighing heavy in the
balance, requires no further discussion.
4
(...continued)
consolidation is deemed inappropriate, coordinated treatment by a
single district judge avoids many of the problems presented by
the alternative.
5
The court recognizes, and has taken into consideration, the
fact that the four pending actions are not identical. Given
their overwhelming similarities to one another, however, along
with the nearly identical relief sought, the Supreme Court’s
observations in Continental Grain unmistakably apply.
15
There are, however, very substantial considerations in
counterbalance. They involve economy, the integrity of the
judicial process, and the need for certainty and finality in the
coalfields. From an economy standpoint, there is obvious value
in having a single district judge superintend the multiple civil
actions spawned by defendants’ policies. Absent transfer, three
judges and their staffs will devote dozens if not hundreds of
hours to properly frame the issues, review substantial briefing
and arguments at different points, and carefully craft opinions
addressing complex subject matter.6 It bears noting that these
multiplicitous proceedings account for work performed only in the
district court. Three additional appellate layers are likely to
materialize at some point, presenting another undesirable effect
discussed further in. Transfer is an easy solution to these
unwelcome results.
Regarding the integrity of the judicial process, one
would expect the defendants in the three different districts to
pursue a unified approach. The same is not as easily said for
their plaintiff counterparts. There is no overlap among the
respected counsel on the plaintiffs’ side, even in the Gorman and
6
This observation is evident in light of the first
substantial ruling entered in the four actions. Judge Walton’s
well-considered and thorough memorandum opinion resolving the
motions to dismiss and for a preliminary injunction spans 31
pages.
16
KCA actions in Kentucky. It seems certain then that all of these
different lawyers may pursue differing litigation strategies,
perhaps resulting in arguments and authorities being presented to
one or some of the district judges but not their judicial
counterpart(s). If those variances end up impacting the
decisional law, both the judicial process and settled notions of
fairness will suffer. That outcome, too, can easily be avoided
by transfer.
Third, and of greatest significance for all concerned
and the public interest, is the need for certainty and finality
in the coalfields. It seems unlikely, but possible, that the
NMA, DEP, Gorman, and KCA actions could be decided by the three
district judges in the same manner and on the same grounds. The
timing of those decisions may differ substantially, however,
owing to the filing of the cases at different times, the entry of
differing scheduling orders, and the issues in each maturing at
their own pace, with procedural issues arising in perhaps some of
the cases but not others.7 Many of these concerns can be
alleviated by a single district judge consolidating the cases, or
at least coordinating them in some methodical fashion.
7
While defendants moved to dismiss the NMA action and NMA
moved for a preliminary injunction, no similar motions have been
filed at this time in either this district or in Kentucky.
17
As noted, the appellate layer poses its own problems if
transfer does not occur. For example, the EC Process applies to
Section 404 permit applications in six states falling under the
jurisdiction of four different United States Courts of Appeal.
Assuming compatible results are reached in the district courts
where these four actions currently pend, the appellate process
offers but one more opportunity for disharmony and differing
decisional time lines. It is difficult to comprehend the
problems that might arise for the federal and state regulators,
the industry, and potentially the citizenry and the markets, if
different rules are deemed to apply in different circuits. Once
again, transfer eliminates that problem. It offers the best
chance for uniformity, certainty, and finality (with dispatch)
for these weighty issues impacting the nation’s energy supply.8
8
It is also worth noting the peculiar expertise in
administrative law possessed by both the D.C. District Court and
the United States Court of Appeals for the District of Columbia
Circuit. See, e.g., Verizon California Inc. v. Peevey, 413 F.3d
1069, 1084 (9th Cir. 2005) (Bea, J., concurring) (“The D.C.
Circuit . . . has particular expertise in administrative law . .
. .”); Springdale Memorial Hosp. Ass'n, Inc. v. Bowen, 828 F.2d
491, 492 (8th Cir. 1987) (Heaney, Lay, and McMillian, JJ.,
dissenting from the denial of a pet. for reh’g en banc) (noting
the apparent benefit of “call[ing] upon the expertise of the
District of Columbia Circuit to provide decisions in cases in
administrative law which, unless reversed by the Supreme Court,
are expected to have a national impact.”); Seema Shah and
Patricia Zettler, From a Constitutional Right to a Policy of
Exceptions: Abigail Alliance and the Future of Access to
Experimental Therapy, 10 Yale J. Health Pol'y, L. & Ethics 135,
139 (2010) (“The D.C. Circuit is widely recognized as having
special expertise on matters of administrative law, and the
Abigail Alliance opinion is now considered an authoritative
(continued...)
18
Based upon the foregoing, the considerable weight of
plaintiffs’ forum choice cannot withstand the confluence of
negative effects likely to result from the DEP action remaining
in this district. The balance is thus struck strongly in favor
of the defendants’ request to transfer. Gilbert, 330 U.S. at
508.
The court, accordingly, ORDERS that defendants’ motion
to transfer be, and it hereby is, granted. It is further ORDERED
that this action be, and it hereby is, transferred to the
District of Columbia District Court for all further proceedings.
The court additionally does not reach the motion to
intervene, deeming it best for that determination to be made in
the transferee court. For example, Judge Walton has previously
imposed joint filing conditions upon those parties to whom he has
granted intervention.
(...continued)
8
judgment on the topic of a constitutional right to access
experimental therapies.”). This observation fortifies the
potential for certainty and finality that seems so critical for
all concerned.
19
The Clerk is requested to transmit this written opinion
and order to all counsel of record and to any unrepresented
parties.
DATED: January 31, 2011
John T. Copenhaver, Jr.
United States District Judge
20