National Mining Association v. Jackson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
NATIONAL MINING ASSOCIATION, )
)
Plaintiff, )
)
v. )
)
LISA JACKSON Administrator, ) Civil Action No. 10-1220 (RBW)
U.S. ENVIRONMENTAL PROTECTION )
AGENCY, et al., )
)
Defendants, )
)
SIERRA CLUB et al., )
)
Defendant-Intervenors. )
_______________________________________)

MEMORANDUM OPINION

The plaintiff brings this action against the federal defendants pursuant to the Clean Water

Act, 33 U.S.C. § 1251 (2006), the Surface Mining Control and Reclamation Act, 30 U.S.C. §

1201 (2006), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 (2006), challenging

a series of memoranda and a detailed guidance released by the Environmental Protection Agency

("EPA"). The parties appeared before the Court on December 15, 2010, for argument on the

federal defendants' motion to dismiss, Defendants' Motion to Dismiss ("Defs.' Mot. to Dismiss"),

and the plaintiff's motion for a preliminary injunction, Plaintiff's Motion for a Preliminary

Injunction ("Pl.'s PI Mot."). For the reasons that follow, the Court denies both the motion to

dismiss and the motion for a preliminary injunction. 1

1
In deciding these two motions, the Court also considered: the Complaint for Declaratory and Injunctive
Relief ("Compl."); the Defendants' Memorandum in Support of their Motion to Dismiss ("Defs.' Mem. re:
Dismiss"); the Plaintiff National Mining Association's Memorandum in Opposition to Defendants' Motion to
Dismiss ("Pl.'s Opp'n re: Dismiss"); the United States' Reply Memorandum in Support of its Motion to Dismiss
(Continued . . . )

1
 I. Statutory Background

This section summarizes the relevant Clean Water Act permit granting scheme.

Clean Water Act Section 404 Permits

Section 404 permits are issued by the United States Army Corps of Engineers ("Corps")

"for the discharge of dredged and fill material into navigable waters at specified disposal sites."

33 U.S.C. § 1344(a). The Corps has sole authority to issue Section 404 permits, but in doing so

it must apply guidelines that it develops in conjunction with the EPA. 2 Id. § 1344(b). In

addition to providing the EPA with the responsibility to develop the guidelines in conjunction

with the Corps, the Clean Water Act grants the EPA authority to prevent the Corps from

authorizing certain disposal sites. 3 Id. § 1344(c). In the absence of a specific regulatory

exception, the Corps must reach a decision on a pending application for a Section 404 permit no

later than 60 days after receipt of the application for the permit. See 33 C.F.R. § 325.2(d)(3)

(2010) (providing that "[d]istrict engineers will decide on all applications not later than 60 days

after receipt of a complete application, unless" one of six exceptions applies).

(. . . continued)
("Defs.' Reply re: Dismiss"); the Plaintiff's Memorandum in Support of a Motion for Preliminary Injunction ("Pl.'s
PI Mem."); the United States' Memorandum in Opposition to National Mining Association's Motion for a
Preliminary Injunction ("Defs.' PI Opp'n"); the Plaintiff National Mining Association's Reply Memorandum in
Support of Motion for Preliminary Injunction ("Pl.'s PI Reply"); the United States' Surreply Brief in Opposition to
the National Mining Association's Motion for a Preliminary Injunction ("Defs.' PI Surreply"); and the Memorandum
of Sierra Club et al. in Opposition to the Plaintiff's Motion for a Preliminary Injunction ("Def. Ints.' PI Opp'n").
2
The EPA-promulgated 404(b)(1) guidelines, codified at 40 C.F.R. Part 230, guide the Corps' review of the
environmental effects of proposed disposal sites. The guidelines provide that "[n]o modifications to the basic
application, meaning, or intent of these guidelines will be made without rulemaking by the Administrator under the
Administrative Procedure Act." 40 C.F.R. § 230.2(c) (emphasis added).
3
To exercise its authority to prevent the Corps from authorizing a particular dumpsite, known as the 404(c)
veto authority, the EPA must determine, after notice and an opportunity for public hearing, that certain unacceptable
environmental effects would occur if the disposal site were approved by the Corps and granted a permit.

2
 Clean Water Act Section 402 Permits

Known as National Pollutant Discharge Elimination System ("NPDES") permits, Section

402 permits are typically issued by states for the discharge of non-dredged and non-fill material.

33 U.S.C. § 1342(a)(5). These permits govern pollutants that are assimilated into receiving

waters by establishing limits placed on the make-up of wastewater discharge. Once the EPA

approves a state permitting program, states have exclusive authority to issue NPDES permits,

although the EPA does have limited authority to review the issuance of such permits by states.

33 U.S.C. § 1342(d). All of the Appalachian States allegedly impacted by the EPA actions at

issue in this litigation (Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia)

have EPA-approved Section 402 permit authority.

Clean Water Act Section 303 Water Quality Standards

Section 303 of the Clean Water Act allocates primary authority for the development of

water quality standards to the states. 33 U.S.C. § 1313. A water quality standard designates uses

for a particular body of water and establishes criteria for protecting and maintaining those uses.

40 C.F.R. § 131.2 (2010). These standards can be expressed as a specific numeric limitation on

pollutants or as a general narrative statement. See 40 C.F.R. § 131.3(b). While states have the

responsibility to develop the water quality standards, the EPA reviews the standards for

approval. 40 C.F.R §§ 131.4, 131.5. The EPA may promulgate water quality standards to the

exclusion of a state only if (1) it determines that a state's proposed new or revised standard does

not measure up to the Clean Water Act's requirements and the state refuses to accept EPA-

proposed revisions, or (2) a state does not act, but in the EPA's view a new or revised standard is

necessary. 33 U.S.C. § 1313(a)(2).

3
 II. Factual Background 4

Plaintiff National Mining Association ("NMA") alleges that recent actions taken by the

EPA and the Corps have unlawfully obstructed the Clean Water Act permitting processes for

coal mining. Complaint ("Compl.") ¶ 2. The plaintiff identifies two series of documents that it

asserts unlawfully changed the established permitting process: (1) the June 11, 2009 Enhanced

Coordination Process ("EC Process") Memoranda, and (2) the April 1, 2010 Detailed Guidance

Memorandum ("Guidance Memorandum"). Id. The plaintiff represents that its member

companies are "not seeking to shirk their responsibilities under any environmental protection

laws or regulations; rather, they are merely asking [the] EPA and the Corps to regulate" within

the bounds of the law. Pl.'s PI Mem. at 41-42.

The plaintiff asserts that the EC Process memoranda formalized an "extraregulatory"

practice that commenced in January 2009. Id. at 7. At that time, the EPA issued a series of

letters to the Corps raising questions about the legality of Section 404 permits that, the plaintiff

claims, the Corps was poised to issue imminently. Id. According to the plaintiff, the EC Process

memoranda then "imposed substantive changes to the Section 404 permitting process by creating

a new level of review by [the] EPA and an alternate permitting pathway not contemplated by the

current regulatory structure." Id. The plaintiff represents that the EC Process utilizes the Multi-

Criteria Integrated Resource Assessment ("MCIR Assessment") to screen pending Section 404

permits and determine which of those pending permits will proceed for standard review by the

Corps and which will be subject to the EC process. Id. at 8. The plaintiff contends that once a

permit is designated for the EC Process, it faces a burdensome review process wholly different

4
The following facts are drawn from the allegations contained in the plaintiff's complaint and in the
plaintiff's memorandum supporting its motion for a preliminary injunction.

4
than that contemplated by the Clean Water Act. 5 Id. Ultimately, the EPA announced, in

September 2009, that through the MCIR Assessment it had identified 79 coal-related pending

Section 404 permits that would be subjected to the EC process. Id. at 9.

Then, in April 2010, the EPA released its Guidance Memorandum in which, the plaintiff

asserts, the EPA "made sweeping pronouncements regarding the need for water quality-based

limits" in Section 402 and 404 permits. Id. The plaintiff maintains that the Guidance (1)

effectively established a region-wide water quality standard based on conductivity levels it

associated with adverse impacts to water quality, (2) was being used by the EPA to cause

indefinite delays in the permitting process, and (3) caused various permitting authorities to insert

the conductivity level into pending permits. Id. at 9-10. Further, the EPA used the Guidance to

reopen previously issued permits to impose the conductivity limit, which, the plaintiff alleges

"halt[s mining] projects in their tracks." Id. at 10-11. In contrast to the MCIR Assessment and

the EC process, which apply only to pending Section 404 permits, the Guidance covers both

Section 402 and 404 permits associated with surface mining projects in Appalachia. Defs.' Mem.

re: Dismiss at 17 n.7.

III. The Defendants' Motion to Dismiss

A. Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of claims

for which the complaint does not set forth allegations sufficient to establish the court's

jurisdiction over the subject matter of the claims presented. Fed. R. Civ. P. 12(b)(1). In deciding

a motion to dismiss challenging the Court's subject matter jurisdiction under Rule 12(b)(1), a

5
The plaintiff alleges that the EC process adds a minimum of 60 days, and perhaps many months, to the
Section 404 review process.

5
court "must accept as true all of the factual allegations contained in the complaint" and draw all

reasonable inferences in favor of the plaintiff, Brown v. District of Columbia, 514 F.3d 1279,

1283 (D.C. Cir. 2008), but courts are "not required . . . to accept inferences unsupported by the

facts or legal conclusions that are cast as factual allegations." Rann v. Chao, 154 F. Supp. 2d 61,

64 (D.D.C. 2001). Further, the "court may consider such materials outside the pleadings as it

deems appropriate to resolve the question whether it has jurisdiction in the case." Scolaro v.

D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Ultimately, however, the

plaintiff bears the burden of establishing the Court's jurisdiction, Rasul v. Bush, 215 F. Supp. 2d

55, 61 (D.D.C. 2002), and where subject matter jurisdiction does not exist, "the court cannot

proceed at all in any cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

B. Legal Analysis

The federal defendants assert three separate but related jurisdictional grounds for

dismissal: (1) the lack of final agency action; (2) the plaintiff's claims are not ripe for review; and

(3) the plaintiff's lack of standing. The Court will address each argument in turn.

1. Final Agency Action

The APA limits judicial review to "final agency action for which there is no other

adequate remedy in court." 5 U.S.C. § 704. In other words, finality is a "threshold question" that

determines whether judicial review is available. Fund for Animals, Inc. v. U.S. Bureau of Land

Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006). The Supreme Court has explained that, "[a]s a general

matter, two conditions must be satisfied for agency action to be final: First, the action must mark

the consummation of the agency's decision[-]making process," Bennett v. Spear, 520 U.S. 154,

177-78 (1997) (quotation marks omitted), and second, "the action must be one by which rights or

6
obligations have been determined, or from which legal consequences will flow." 6 Id. at 178

(quotation marks omitted).

Here, the federal defendants assert that none of the EPA's actions—the MCIR

Assessment, the EC Process, or the Guidance Memorandum—qualify as final agency action

within the meaning of the APA, and that the plaintiff's claims must therefore be dismissed.

Defs.' Mem. re: Dismiss at 13. They maintain that the EPA used the MCIR Assessment to

screen permit applications as only the first of several steps in the permitting process, and that the

MCIR Assessment therefore did not mark the consummation of the decision-making process or

give rise to legal consequences. Id. at 14. The federal defendants similarly argue that neither the

EC Process nor the Guidance Memorandum mark the consummation of the decision-making

process or give rise to any legal obligations. Id. at 15, 17. Throughout their filings with the

Court, the federal defendants emphasize what seems to be their core finality argument: that the

EPA's actions are not final because they do not mark the grant or denial of the various permits at

issue. See id. at 15 (quoting Chem. Mfrs. Ass'n v. EPA, 26 F. Supp. 2d 180, 183 n.2 (D.D.C.

6
In deciding the question of finality, the Court must also assess the question of whether the EPA's actions
constitute a de facto legislative rule, promulgated in violation of the APA's notice and comment requirements. This
is so given the similarity between the second aspect of the finality assessment—whether the action gives rise to legal
obligations or is one from which legal consequences flow—and the standard for determining whether a challenged
action constitutes a regulation or a mere statement of policy—"whether the action has binding effects on private
parties or on the agency," Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999), or, in other words, "whether
the agency action binds private parties or the agency itself with the force of law," Gen. Elec. Co. v. EPA, 290 F.3d
377, 382 (D.C. Cir. 2002). Indeed, the District of Columbia Circuit has recognized the manner in which these
standards become interwined:

In order to sustain their position, appellants must show that the [challenged guidelines] either (1)
reflect "final agency action," . . . or, (2) constitute a de facto rule or binding norm that could not
properly be promulgated absent the notice-and-comment rulemaking required by [the APA].
These two inquiries are alternative ways of viewing the question before the court. Although, if
appellants could demonstrate the latter proposition, they would implicitly prove the former,
because the agency's adoption of a binding norm obviously would reflect final agency action.

Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 806 (D.C. Cir. 2006). Agency action,
however, can meet the first prong of the Bennett test without meeting the second. See, e.g., id. at 431 ("The
guidelines are nothing more than general policy statements with no legal force. . . . Therefore, the guidelines cannot
be taken as 'final agency action,' nor can they otherwise be seen to constitute a binding legal norm.").

7
1998), where the Court stated: "the relevant question is not whether the action concludes a

decision[-]making process . . . but whether the action concludes the decision[-]making process"),

17 ("As with the [MCIR] Assessment and the EC Process, the Guidance does not mark the

consummation of the relevant decision[-] making process here, i.e., the review of permit

applications pursuant to the [Clean Water Act]. That process consummates in final agency

action only when a permit is issued, denied, or vetoed.").

The plaintiff counters that the federal "defendants' interpretation of finality is too

restrictive, as it encompasses only the last possible agency decision." Pl.'s Opp'n re: Dismiss at

24-25. It asserts that the issuance of the MCIR Assessment reflects the EPA's settled, final

position concerning how it would screen all pending Section 404 permit applications; that the

creation of the EC process reflects the settled, final position to establish an alternate permitting

framework, thus changing the legal landscape set forth in the 404(b)(1) guidelines; and that the

Guidance Memorandum marks the consummation of the decision-making process and has had

practical effects that have changed the legal obligations of the permitting authorities, i.e., the

Corps and the state regulators, and the plaintiff's members who are seeking permits. Id. at 26-27.

The plaintiff points to both Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir.

2000), and CropLife America v. EPA, 329 F.3d 876 (D.C. Cir. 2003), as supporting its assertions

that the EPA's actions here constitute final agency action. In Appalachian Power, power

companies alleged that an EPA guidance document imposed unauthorized requirements on states

in connection with the operation of permit programs under the Clean Air Act. 208 F.3d at 1015.

There, as here, the EPA argued that the guidance was not subject to judicial review because it

was neither final agency action nor a binding legislative rule. Id. at 1020. The District of

Columbia Circuit, however, disagreed, concluding that

8
 The short of the matter is that the guidance, insofar as relevant here, is
final agency action, reflecting settled agency position which has legal
consequences both for State agencies administering their permit programs
and for companies like those represented by petitioners who must obtain
[Clean Air Act] permits in order to continue operating. 7

Id. at 1023. There was evidence in Appalachian Power that "State authorities, with EPA's

guidance in hand, [were] insisting on continuous opacity monitors," id., i.e., compliance with the

standards set forth in the guidance. Next, in CropLife, the District of Columbia Circuit

determined that an EPA directive, which had been published in a press release and changed the

established practice of relying on third-party studies, was a binding regulation. 329 F.3d at 876.

The court held that "the directive clearly establishe[d] a substantive rule declaring that third-

party human studies are now deemed immaterial in EPA regulatory decision[-]making," id. at

883, and further concluded that the "disputed directive concretely injures petitioners, because it

unambiguously precludes the agency's consideration of all third-party human studies, i.e., studies

that petitioners previously have been permitted to use to verify the safety of their products." Id.

at 884.

The federal defendants argue that the EC Process memoranda here can be distinguished

from the actions in Appalachian Power and CropLife because the EC process memoranda are not

binding on their face and the EPA explicitly stated they were not binding. Defs.' Reply re:

Dismiss at 3-4. The federal defendants further attempt to distinguish the Guidance by pointing

out that it was issued as an interim document and clearly stated, on its face, that it would be

issued in final form in 2011. Id. at 9-10. The federal defendants assert that the Court should

7
The court acknowledged that the concluding paragraph of the guidance contained a disclaimer of sorts,
indicating that the policies set forth in the document were intended solely as guidance, did not represent final agency
action, and could not be relied upon to create enforceable rights, but then pointed out that "this language is
boilerplate; since 1991 EPA has been placing it at the end of all of its guidance documents." Appalachian Power,
208 F.3d at 1023.

9
follow Gem County Mosquito Abatement District v. EPA, 398 F. Supp. 2d 1 (D.D.C. 2005), in

which the court held that an interim EPA guidance advising a county mosquito abatement entity

that it did not need an NPDES permit to apply pesticides to waters was not final agency action.

In Gem County, although believing it did not need one, the plaintiff nonetheless sought an

NPDES permit because it had been threatened with being sued and was then sued by organic

farmers who asserted that the pesticides used to abate the mosquitoes threatened their

certification as organic farms. Id. at 4. The EPA advised the abatement entity that its position

that it did not need an NPDES permit was correct, which ultimately lead to dismissal of the case

due to the absence of a case or controversy, as both parties agreed that a permit was unnecessary.

Id. at 8. In its rejection of the plaintiff's argument that the interim guidance was a final rule, the

court found that the EPA had "made clear that the Interim Guidance was just that: interim

guidance on which public comment would be solicited and considered before issuing a final

interpretation and guidance. In its interim form, [the] guidance is interlocutory and does not

finally determine legal rights or obligations." Id. at 11. The court did explain, however, that "the

'finality' element is interpreted in a 'pragmatic way.'" Id. (quoting FTC v. Standard Oil Co. of

Cal., 449 U.S. 232, 239 (1980)). Drawing from its analysis of the case and controversy

prequisite to its authority to exercise jurisdiction in the matter, the court concluded: "To regard

EPA's interim guidance as final where it does not impose a legal obligation to obtain permits

would improperly and prematurely interfere with the process by which an agency reaches a final

position on maters committed to its discretion." Gem Cnty, 398 F. Supp. 2d at 11. Therefore,

the Court's finality assessment seems to have had more to do with what had actually occurred in

response to the guidance—the preservation of the status quo—and not the mere fact that the EPA

had stated that the document it issued was interim and interlocutory.

10
 Here, because the agency actions more closely resemble those at issue in Appalachian

Power and CropLife than was the situation before the Court in Gem County, the MCIR

Assessment, the EC Process, and the Guidance Memorandum all meet the criteria of final agency

actions. The federal defendants' view of what amounts to finality is too narrow, as it is possible

for an agency to take final agency actions during a permit assessment process prior to actually

determining whether to grant or deny an application for a permit. Although the federal

defendants stress in their filings, and vigorously reiterated at the December 15, 2010 hearing,

that the MCIR Assessment, the EC Process, and the Guidance Memorandum impose no new

substantive requirements on permit applications, see, e.g., Defs' Mem. re: Dismiss at 18

(asserting that the "Guidance does not . . . establish any new standards that supplement or amend

the existing statutory and regulatory requirements"), it is clear to the Court that the EPA has

implemented a change in the permitting process.

It appears obvious on the current record that the MCIR Assessment reflects the EPA's

final decision to evaluate pending permits to determine whether they would undergo the EC

Process. As shown in Appalachian Power, a reworking of the permitting process gives rise to

legal consequences for companies that must obtain those permits to operate. 208 F.3d at 1023.

From the moment a permit is screened pursuant to the MCIR Assessment, the EPA seems to be

imposing an additional step to the permitting process that is not contemplated or set forth in the

404(b)(1) guidelines. This is also true for the EC Process itself. Again, like the documents at

issue in Appalachian Power, the EC Process Memoranda impose unequivocal requirements on

the exercise of regulatory authority regarding the pending permit applications. 8 Accordingly, as

8
For example, the June 11, 2009 EC Process Memorandum begins by explaining that the "EPA and the
Corps hereby establish a process for enhanced coordination." Pl.'s PI Mot., Ex. 1 (June 11, 2009 Memorandum to
the Field on Enhanced Coordination Procedures) (emphasis added).

11
in CropLife, the EC Process "reflects an obvious change," 329 F.3d at 881, in the permitting

regime set forth in Section 404 of the Clean Water Act and in the regulations implementing that

provision. Thus, despite the fact that the 404(b)(1) guidelines provide that "[n]o modifications to

the basic application . . . of these [g]uidelines will be made without rulemaking . . . under the

[APA]", 40 C.F.R. § 230.2(c), it seems quite apparent that the MCIR Assessment and the EC

Process enacted a change in the basic application of the permitting procedures for Section 404

permits. Accordingly, these changes to the statutorily established process give rise to the legal

consequences necessary to satisfy the second prong of the Bennett finality analysis.

While the Guidance Memorandum is perhaps a closer call than the MCIR Assessment

and the EC Process, it too, qualifies as final agency action because, despite the representation

that it is an interim document, it is nonetheless being applied in a binding manner and has been

implemented in its current version even though the EPA continues to receive comments about it.

Therefore, based on the record before the Court at this time, it appears that the EPA is treating

the Guidance as binding. See Pl.'s PI Mem. at 21 (quoting an EPA official as saying that the

"guidance stands" and "will continue to [be used to ensure] that mining permits issued in West

Virginia and other Appalachian states provide the protection required under federal law"). The

EPA official's statement can only be interpreted as reflecting the EPA's settled, final stance on its

current application of the Guidance Memorandum, even if this position may change at some

point in the future once the EPA promulgates a new version of the Guidance Memorandum. See

Appalachian Power, 208 F.3d at 1022 (noting that the "EPA may think that because the

Guidance . . . is subject to change, it is not binding and therefore not final action," but concluding

that "all laws are subject to change . . . . The fact that a law may be altered in the future has

nothing to do with whether it is subject to judicial review at the moment.").

12
 Thus, unlike the guidance in Gem County, which merely had the effect of preserving the

status quo, the Guidance Memorandum here has a practical impact on the plaintiff's members

seeking permits. In other words, despite the EPA's assertions that the Guidance Memorandum is

only an interim document, the Guidance Memorandum is being treated and applied in practice as

if it were final. The practical impact imposed upon permit applicants by the recent actions of the

EPA are sufficient to satisfy the Bennett finality test because the "'finality' element is interpreted

in a 'pragmatic way.'" Gem Cnty, 398 F. Supp. 2d at 11 (quoting FTC v. Standard Oil Co. of

Cal., 449 U.S. 232, 239 (1980)); accord Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 15

(D.C. Cir. 2005) ("Finality resulting from the practical effect of an ostensibly non-binding

agency proclamation is a concept [this Circuit has] recognized in the past.") (citing Gen. Elec.

Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002)).

2. Ripeness

"[R]epresent[ing] a prudential attempt to balance the interests of the court and the agency

in delaying review against the petitioner's interest in prompt consideration of allegedly unlawful

agency action," Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1420-21 (D.C. Cir. 1998),

the ripeness doctrine requires courts to consider the framework set forth by the Supreme Court in

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). First, a court must "evaluate the

'fitness of the issues for judicial decision.'" Fla. Power & Light, 145 F.3d at 1421 (quoting

Abbott Labs., 387 U.S. at 149). If a challenged decision is not "fit" for review, "the petitioner

must show 'hardship' in order to overcome a claim of lack of ripeness." Fla. Power & Light, 145

F.3d at 1421. In assessing the fitness prong, courts evaluate "whether the agency action is final;

whether the issue presented for decision is one of law which requires no additional factual

13
development; and whether further administrative action is needed to clarify the agency's

position." Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C. Cir. 1986).

The federal defendants assert that the plaintiff's claims should be dismissed because they

are not ripe for review. Defs.' Mem. re: Dismiss at 19. Specifically, the federal defendants again

argue that the MCIR Assessment, the EC Process, and Guidance Memorandum are not final

agency actions, and further, that their review "outside the context of a specific permitting

decision would entangle the court in abstract considerations." Id. at 21. The plaintiff in turn

again contends that the three actions at issue here constitute final agency actions and present

primarily, if not purely, legal questions for which further factual development in the context of a

specific permitting decision is unnecessary. Pl.'s Opp'n re: Dismiss at 30, 34.

As explained above, based on the record currently before the Court, the MCIR

Assessment, the EC Process, and the Guidance all appear to constitute final agency actions.

Moreover, the claims raised by the plaintiff, i.e., whether the actions constitute legislative rules

and whether the EPA violated the notice and comment requirement of the APA, present purely

legal questions. See Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 215 (D.C. Cir. 2007)

(explaining that it is "well-established that claims that an agency's action is . . . contrary to law

present purely legal issues . . . [s]o, too, do claims that an agency violated the APA by failing to

provide notice and opportunity for comment."). The federal defendants' insistence on "specific

permitting decisions," Defs.' Mem. re: Dismiss at 21, echoes their argument that their actions

could not be final as they had not granted or denied any permits it has subjected to the EC

process. This, however, misses the point of the plaintiff's claim: that the process itself is

unlawful, and not simply any decisions that may result from the application of that process. See

Pl.'s Opp'n re: Dismiss at 31 ("NMA's contention is that Defendants acted contrary to law in

14
issuing the EC Process Memoranda, which unambiguously dictated that the memoranda—and

not existing regulations—would govern [pending] permit applications."). Thus, no factual

developments would clarify these issues or assist the Court in evaluating the plaintiff's claims.

See Appalachian Power, 208 F.3d at 1023 n.18 ("Whether EPA properly instructed state

authorities to conduct sufficiency reviews of existing state and federal standards and to make

those standards more stringent if not enough monitoring was provided will not turn on the

specifics of any particular permit."). Accordingly, the Court finds the plaintiff's claims ripe for

review on the defendants' dismissal motion. 9

3. Standing

The irreducible constitutional minimum of standing contains three elements: (1) injury in

fact, (2) causation, and (3) the possibility of redress by a favorable decision. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992). These requirements apply whether an organization

asserts standing on its own behalf, or on behalf of its members. Havens Realty Corp. v.

Coleman, 455 U.S. 363, 378 (1982). "[A]t the pleading stage, general factual allegations of

injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume

that general allegations embrace those specific facts that are necessary to support the claim."

Bennett, 520 U.S. at 168 (internal quotations omitted).

The federal defendants assert that the plaintiff has failed to establish the requisite injury-

in-fact prong of the test for standing because it has not shown that its members have suffered a

particularized and concrete injury traceable to the MCIR Assessment, the EC Process, or the

Guidance Memorandum. Defs.' Mem. re: Dismiss at 30. They again rely on the fact that "none

9
Because the Court, pursuant to the first element of the ripeness doctrine set forth by the Supreme Court in
Abbott Laboratories, 387 U.S. 136 (1967), and clarified by this Circuit in Florida Power & Light, 145 F.3d 1414
(D.C. Cir. 1998), concludes that the issues presented in this litigation are "fit" for review, it need not address the
second, hardship factor of the ripeness test. See Fla. Power & Light, 145 F.3d at 1421.

15
of the permit applications subject to the process has been denied by the Corps or vetoed by

EPA." Id. The federal defendants' acknowledge that the plaintiff "may allege procedural injury

based on its notice and comment claims," id., but assert that deprivation of a procedural right

without some concrete interest affected by the deprivation is insufficient to create standing. Id.

The plaintiff, however, asserts that "being subject to this additional, illegal process is itself

sufficient injury for standing purposes," Pl.'s Opp'n re: Dimiss at 40, an injury which in turn is

"threatening the financial viability of proposed mining projects." Id. The plaintiff further alleges

that the delays in the permitting process its members have experienced are attributable to the EC

Process and that a favorable decision—declaring the EC Process and Guidance Memorandum

illegal—would redress the injuries its members are incurring. Id. at 41-42.

The Court agrees that the procedural injury alleged by the plaintiff is more than just that

stemming from the claimed notice and comment violations. While the plaintiff does allege

notice and comment violations, its main point of contention is that the additional process created

by the EPA's actions has and will continue to cause its members "injury that is concrete and

particularized." Id. at 39; see id. (asserting that the "EC Process Memoranda have allowed [the]

Defendants to restart and pause the clock with respect to Section 404 permit applications pending

on March 31, 2009, even in instances where [the] EPA did not comment during the Corps'

designated comment period"). As noted above, on the record currently before the Court, it seems

clear that the EPA has imposed additional processes—the MCIR Assessment and the EC

Process—to the permitting procedures, and that these additional processes are not contemplated

or set forth in the 404(b)(1) guidelines. It also appears that the Guidance Memorandum is being

applied in a binding manner. There is therefore support for both the plaintiff's allegations of

injury in the form of notice and comment violation and, more importantly so far as standing is

16
concerned, in the form of "additional, illegal process." Pl.'s Opp'n re: Dimiss at 39. Thus, on the

record currently before it, and in light of the fact that "at the pleading stage, general factual

allegations of injury resulting from the defendant's conduct may suffice," Bennett, 520 U.S. at

168, the Court can and does conclude that at this stage of the proceedings the plaintiff's

allegations are sufficient to establish that it has standing to maintain this suit.

IV. The Plaintiff's Motion for a Preliminary Injunction

A. Standard of Review

District courts have the power to grant preliminary injunctions under Rule 65 of the

Federal Rules of Civil Procedure. Fed. R. Civ. P. 65. As a general matter, preliminary

injunctions are "extraordinary" forms of relief and should be granted sparingly. Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997). "An injunction is designed to deter future wrongful acts,"

United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953), and thus, while past harm is relevant,

the ultimate inquiry remains "whether there is a real and immediate threat of repeated injury."

D.C. Common Cause v. District of Columbia, 858 F.2d 1, 8-9 (D.C. Cir. 1988).

In evaluating a motion for preliminary injunctive relief, courts must balance: "(1) the

[movant's likelihood] of success on the merits; (2) the threat of irreparable injury in the absence

of an injunction; (3) the possibility of substantial harm to other interested parties from the

issuance of an injunction; and (4) the interests of the public." Wagner v. Taylor, 836 F.2d 566,

575 (D.C. Cir. 1987). Although a particularly strong showing on one factor may compensate for

a weak showing on one or more of the other factors, id. at 576, the movant must show that the

threat of irreparable harm is "likely," as opposed to just a "possibility." Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7 (2008).

17
 B. Legal Analysis

1. Likelihood of Success on the Merits

Unsurprisingly, the plaintiff argues that it is likely to succeed on the merits of its claims.

The plaintiff first asserts that the EC Process Memoranda and the Guidance are legislative rules

that were promulgated in violation of the APA. Pl.'s PI Mem. at 12. The plaintiff further

maintains that the EPA has exceeded its statutory authority under the Clean Water Act, the

National Environmental Policy Act, and the APA. Id. at 24.

a. Whether The EPA's Actions are Legislative Rules

As previously noted, the standard for determining whether an agency pronouncement is a

legislative rule is very similar to the second element of the Bennett finality analysis. A

legislative rule is agency action that has "the force and effect of law." Appalachian Power, 208

F.3d at 1020. Such a rule "grant[s] rights, impose[s] obligations, or produce[s] other significant

effects on private interests;" "narrowly constrict[s] the discretion of agency officials by largely

determining the issue addressed"; and "[has] substantive legal effect." Batterton v. Marshall, 648

F.2d 694, 701-02 (D.C. Cir. 1980). A rule that effectively amends a prior legislative rule is a

legislative, not an interpretative rule. Am. Mining Cong. v. Mine Safety & Health Admin., 995

F.2d 1106, 1112 (D.C. Cir. 1993). "[N]ew rules that work substantive changes . . . or major

substantive legal additions . . . to prior regulations are subject to the APA's procedures." U.S.

Telecom Ass'n v. FCC, 400 F.3d 29, 34-35 (D.C. Cir. 2005) (citations omitted). If an agency

adopts a new position inconsistent with an existing regulation, or effects a substantive change in

the regulation, notice and comment are required. Id. at 35.

As explained above in regard to the Court's finality analysis, based on the record

currently before the Court the MCIR Assessment, the EC Process Memoranda, and the Guidance

18
Memorandum all appear to qualify as legislative rules because they seemingly have altered the

permitting procedures under the Clean Water Act by changing the codified administrative review

process. Thus, the MCIR Assessment, the EC Process, and the Guidance Memorandum all seem

to "effectively amend" the Clean Water Act's permitting process, Am. Mining Cong., 995 F.2d at

1112, and represent the EPA's adoption of a new position inconsistent with an existing

regulation. U.S. Telecom Ass'n, 400 F.3d at 34-35. The plaintiff has therefore established that it

is likely to succeed on the merits of its claim that the challenged EPA actions are legislative rules

that were adopted in violation of the APA's notice and comment requirements.

b. Whether The EPA Exceeded its Statutory Authority

Under the APA, courts must hold unlawful and set aside agency actions found to be in

excess of the agency's statutory jurisdiction, authority, or limitations. 5 U.S.C. § 706(2)(C). To

determine whether an agency exceeded its statutory authority under the APA, the Court must

engage in the two-step inquiry adopted by the Supreme Court in Chevron U.S.A, Inc. v. Natural

Res. Def. Council, 467 U.S. 837 (1984). Under Chevron, if the text of a statute shows that

Congress has directly addressed the question at issue, then the court and the agency must give

effect to the clearly expressed intent of Congress. See id. at 842-43. If, however, the court

determines that an agency's enabling statute is silent or unclear with respect to the issue at hand,

the question for the court then becomes whether the agency's action is based on a permissible

construction of the statute. See id. at 843.

The plaintiff maintains that the EPA and the Corps are violating the plain language of the

Clean Water Act. Pl.'s PI Mem. at 25. Specifically, it alleges that the MCIR Assessment and the

EC Process Memoranda violate the congressional statutory division of authority between the two

agencies as set forth in Section 404 of the Clean Water Act because they improperly expanded

19
the EPA's role in Section 404 permitting decisions. Id. Similarly, the plaintiff maintains that

the Guidance Memorandum requires permitting authorities to require adherence to the

conductivity levels designated in the Guidance Memorandum, thus resulting in the EPA

overstepping the authority it was granted under Section 303 of the Clean Water Act. Id. at 28.

By promulgating this region-wide water quality standard and by applying it to Section 404

permits, in addition to Section 402 permits, the plaintiff asserts that the EPA has significantly

exceeded its statutory authority. Id. at 30-31.

The federal defendants respond that the Clean Water Act authorizes coordination

between the EPA and the Corps during the permit review process and expressly requires the

agencies to enter into an agreement to facilitate such coordination. Defs.' PI Opp'n at 23. They

contend that nothing more than this has been done and assert that the Corps remains the final

decision-maker with respect to issuance of permits, subject only to the EPA's exercise of its

404(c) veto authority. Id. at 24.

Again, for reasons that mirror its finality analysis, the Court finds the plaintiff's

arguments more persuasive and agrees that the plaintiff is likely to prevail on its claim that the

EPA has exceeded its statutory authority. As to the MCIR Assessment, the EPA, and only the

EPA, evaluates pending permits to determine if they will be subject to the EC Process. Pl.'s PI

Mem. at 8. It seems clear, however, that Congress intended the EPA to have a limited role in the

issuance of Section 404 permits, and that nothing in Section 404 of the Clean Water Act gives

the EPA the authorization to develop a new evaluation or permitting process which expands its

role. Likewise, it seems clear that with the implementation of the Guidance Memorandum the

EPA has encroached upon the role carved out for the states under the Clean Water Act by setting

region-wide conductivity standards. In short, the EPA has modified the Section 404 permitting

20
scheme, authority not granted to it under the Clean Water Act, and has similarly taken an

expansive role beyond what was afforded to it in determining Section 303 Water Quality

Standards. Accordingly, the plaintiff has also established that it will likely succeed in showing

that the EPA has exceeded its statutory authority under the Clean Water Act by adopting and

implementing the MCIR Assessment, the EC Process, and the Guidance Memorandum.

2. Threat of Irreparable Harm

A preliminary injunction should issue only when irreparable injury is likely to occur in

the absence of an injunction. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.

Supp. 2d 1, 12 (D.D.C. 2009) (explaining that the Supreme Court in Winter rejected as sufficient

for the purpose of acquiring a preliminary injunction the plaintiff's showing of a "possibility" of

irreparable harm). The failure to demonstrate irreparable harm is "grounds for refusing to issue a

preliminary injunction, even if the other three factors entering the [preliminary injunction]

calculus merit such relief." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297

(D.C. Cir. 2006). "[P]roving 'irreparable' injury is a considerable burden, requiring proof that the

movant's injury is 'certain, great and actual—not theoretical—and imminent, creating a clear and

present need for extraordinary equitable relief to prevent harm.'" Power Mobility Coal. v.

Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (Walton, J.) (quoting Wis. Gas Co. v. FERC,

758 F.2d 669, 674 (D.C. Cir. 1985)) (emphasis in original). In this Circuit, it is "well settled that

economic loss does not, in and of itself, constitute irreparable harm." Wis. Gas Go., 758 F.2d at

674. However, economic loss that threatens the survival of the movant's business can amount to

irreparable harm. Power Mobility Coal., 404 F. Supp. 2d at 204.

Here, the plaintiff asserts that its members face likely irreparable harm in three respects:

(1) its "small business members are likely to be driven out of business by the delays in permitting

21
. . . resulting from the Guidance"; (2) its "members are likely to incur substantial economic

losses as a result of [additional] permit[ting] conditions being imposed under the Guidance

[Memorandum]"; and, (3) "the EC Process and Guidance [Memorandum] are impermissibly

interfering with the exercise of private property rights." Pl.'s PI Mem. at 35-36.

The federal defendants counter all three of these arguments. First, they point out that the

president of Best Coal, whose declaration the plaintiff offers to support its small business

argument, fails to satisfy the irreparable harm standard because it merely states that his

"company will be out of business within [eighteen] months if" it does not receive the requisite

mining permits. Defs.' PI Opp'n at 30, 33. Second, the federal defendants assert that the alleged

economic losses identified by the plaintiff are "compliance costs," id. at 35, and that the plaintiff

has not demonstrated these costs threaten the survival of the plaintiff's member's businesses to

the degree required to overcome this Circuit's rule that economic losses do not constitute

irreparable harms. Id. at 35-36. Third, the federal defendants argue that a finding by this Court

that the type of environmental regulations at issue in this case amount to an infringement on

property rights would "create de facto irreparable harm across much of the field of

environmental regulation, given that environmental regulations often place conditions on the use

of private property." Id. at 38-39. Lastly, the federal defendants contend that the plaintiff's

"delay in seeking injunctive relief, though not dispositive, can 'militate against a finding of

irreparable harm.'" Id. at 40 (quoting Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 44

(D.D.C. 2000)).

The Court agrees with the federal defendants' position that the plaintiff has not shown

that its small business members face irreparable harm in the form of certain or imminent

business closings due to delays in receiving permits caused by the Guidance Memorandum. In

22
Power Mobility Coalition, a case in which a national association whose membership included

manufacturers and suppliers of motorized wheelchairs sought an injunction enjoining

enforcement of the Department of Health and Human Services regulations that changed the

reimbursement structure under Medicare for motorized scooters, 404 F. Supp. 2d at 192, this

Court held that the plaintiff had not demonstrated that the new regulation would cause any of its

members irreparable harm as a result of being forced out of business. Id. at 205. There, this

Court considered a declaration from the president of one member company in which he stated

that "'if the new rule take[s] effect as planned . . . [it is anticipated] that Mr. Mobility will wind-

down its operations and stop doing business as a supplier of mobility equipment in [five or six

months].'" Id. at 204 (quoting Declaration of Philip DeLernia). The Court determined that

because the plaintiff was "basically predicting that many of their claims for reimbursement"

would be denied, the "plaintiff's claim of imminent harm [was], at best, remote and speculative."

Id. at 205.

Here, as the federal defendants aptly recognize, the plaintiff's only support for its claim

that its small business members will be driven out of business by the permitting delays being

occasioned by the EPA's actions is the declaration of Randy Johnson, president of Best Coal,

Inc. 10 Mr. Johnson asserts that

[o]ur company is in a crisis. We want to finish our [ten] year plan but we
are not mining the tonnage sufficient to support even our equipment
payments. We survived to this point in 2010 with cash from prior years
profit but that cash is now gone. We literally exist from week to week.
We have cost[s] that cannot be recovered if the NPDES and Section 404
permits are not issued. Today, we are mining every possible ton to pay our
employees, vendor bills, and bank note payments. If these permits are not
issued, we will be out of business within [eighteen] months.

10
Indeed, this small business argument consumes only two paragraphs of the plaintiff's 45-page
memorandum in support of its motion for a preliminary injunction, and is not mentioned whatsoever in its reply in
support of its motion for a preliminary injunction. See Pl.'s PI Mem. at 37.

23
Pl.'s PI Mem., Ex. 4 (Declaration of Randy Johnson ("R. Johnson Decl.")) ¶ 19. Mr. Johnson

further maintains that (i) the company’s total lost revenue from 2009 and 2010 was nearly $6.7

million; (ii) the company laid off five of its twenty-eight employees; and (iii) the company will

likely need to lay off more employees and '"sell[] equipment to lower [its] cost[s] and loan debt

in the very near future.'" Pl.'s PI Mem. at 37 (quoting R. Johnson Decl. ¶ 18). Although, Mr.

Johnson claims that Best Coal has lost revenues totaling $6,686,751, Pl.'s PI Mem., Ex. 4 (R.

Johnson Decl.) ¶ 18, he does not offer a projection of anticipated future losses, tie that to an

accounting of the company's current assets, or explain with any specificity how he arrived at the

conclusion that he would be forced out of business in eighteen months.

While Mr. Johnson's representations raise legitimate concerns about the current and

future health of his company, his declaration falls short of what is necessary to merit a finding of

irreparable harm. Much like the plaintiff in Power Mobility Coalition, the plaintiff here is

offering nothing more than a "predict[ion]" that is "at best, remote and speculative." 404 F.

Supp. 2d at 205. Something more than Mr. Johnson's conclusory projection is necessary to show

that any of the plaintiff's small business members currently face certain, imminent business

closings. Accordingly, there is no "'clear and present need for extraordinary equitable relief to

prevent harm." Id. at 204 (quoting Wis. Gas Co., 758 F.2d at 674).

Likewise, the Court finds that the plaintiff has not shown to the degree required by law

that its members are likely to incur substantial economic losses as a result of the additional

permitting conditions imposed by the Guidance Memorandum. While it is true that "if a movant

seeking a preliminary injunction 'will be unable to sue to recover any monetary damages against'

a government agency in the future because of, among other things, sovereign immunity, financial

loss can constitute irreparable injury," Pl.'s PI Mem. at 38 (quoting Brendsel v. Office of Fed.

24
Hous. Enter. Oversight, 339 F. Supp. 2d 52, 66-67 (D.D.C. 2004), the fact that economic losses

may be unrecoverable does not absolve the movant from its "considerable burden" of proving

that those losses are "'certain, great and actual.'" Power Mobility Coal., 404 F. Supp. 2d at 204

(quoting Wis. Gas Co., 758 F.2d at 674) (emphasis in original).

Although this Circuit has not specifically addressed the issue of how recoverability of

economic losses should fit into the irreparable harm analysis, this Court has confronted the issue

and repeatedly held that recoverability of the claimed losses is but one element for consideration.

First, in Bracco Diagnostics, Inc. v. Shalala, 963 F. Supp. 20 (D.D.C. 1997), a case in which

medical device manufacturers sought a preliminary injunction to enjoin FDA action, the Court

found that the "plaintiffs' greater financial costs, which are on-going, can never be recouped. Id.

at 29. The Court went on to find that while the injury to plaintiffs was 'admittedly economic,'

there [wa]s 'no adequate compensatory or other corrective relief' that [could] be provided at a

later date, tipping the balance in favor of injunctive relief." Id. (quoting Hoffmann-Laroche, Inc.

v. Califano, 453 F. Supp. 900, 903 (D.D.C. 1978)) (finding that "[t]he possibility that adequate

compensatory or other corrective relief will be available at a later date, in the ordinary course of

litigation, weighs heavily against a claim of irreparable harm"). In Bracco, however, the court

also determined that the plaintiffs had shown "two primary sources of non-speculative, on-going,

and imminent harm." 963 F. Supp. at 28-29. Next, although this Court held in Feinerman that

"where . . . the plaintiff in question cannot recover damages from the defendant due to the

defendant's sovereign immunity, . . . any loss of income suffered by the plaintiff is irreparable

per se," Feinerman v. Bernandi, 558 F. Supp. 2d 36, 51 (D.D.C. 2008) (Walton, J.) (emphasis in

original), the Court also recognized that "the alleged injury must be of such imminence that there

is a clear and present need for equitable relief to prevent irreparable harm." Id. at 50 (quoting

25
Wis. Gas Co., 758 F.2d at 674). Lastly, in Sherley v. Sebelius, 704 F. Supp. 2d 63 (D.D.C.

2010), a case in which the plaintiffs sought to enjoin the Department of Health and Human

Services from applying National Institute of Health guidelines regarding the funding of medical

research that used embryonic stem cells, the Court concluded "[t]here is no after-the-fact remedy

for this injury because the Court cannot compensate plaintiffs for their lost opportunity to receive

funds . . . . Accordingly, plaintiffs would suffer irreparable injury in the absence of the

injunction." Id. at 72. However, earlier in its opinion, the court noted that "[f]irst . . . the alleged

injury must be of 'such imminence that there is a 'clear and present need' for equitable relief to

prevent irreparable harm . . . . [and s]econd, the plaintiff's injury 'must be beyond remediation.'"

Id. (quoting Wis. Gas Co., 758 F.2d at 674) (emphasis in original). Bracco, Feinerman, and

Sherley demonstrate that recoverability of monetary losses can, and should, have some influence

on the irreparable harm calculus, but that recoverability is but one factor the court must consider

in assessing alleged irreparable harm in the form of economic losses. In other words, the mere

fact that economic losses may be unrecoverable does not, in and of itself, compel a finding of

irreparable harm. 11

If a plaintiff has shown that financial losses are certain, imminent, and unrecoverable,

then the imposition of a preliminary injunction is appropriate and necessary; here, however, the

11
Moreover, the Tenth Circuit case cited by the plaintiff in its memorandum supporting its motion for a
preliminary injunction seems to confirm this conclusion. Although the court in Chamber of Commerce v.
Edmondson, 594 F.3d 742, 770-71 (10th Cir. 2010), found that "imposition of monetary damages that cannot later
be recovered for reasons such as sovereign immunity constitutes irreparable injury," it cited as authority for that
finding an earlier Tenth Circuit case which determined that "[a]n irreparable harm requirement is met if a plaintiff
demonstrates a significant risk that he or she will experience harm that cannot be compensated after the fact by
monetary damage." Id. at 771 (quoting Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir.
2003)) (emphasis added). Edmondson can be further distinguished from the plaintiff's situation in this case because
it dealt with the actual imposition of fines on businesses that failed to comply with a state law on the employment of
illegal immigrants, i.e., the actual payment of money by the plaintiff to the authority from which it was then
unrecoverable, whereas here, the plaintiff claims that the injury is economic loss due to (1) delay in continuing or
starting mining projects, and (2) in one instance, the cost of conducting additional tests to comply with the
Guidance.

26
plaintiff has not demonstrated the certainness or the imminence of any of its members' losses. In

fact, and perhaps most importantly to this discussion of the role of recoverability in the

irreparable harm calculus, the plaintiff has not even shown that the losses are wholly

unrecoverable. While the plaintiff has correctly asserted that it cannot recover economic losses

in the form of money damages from the EPA and the Corps due to sovereign immunity, the

plaintiff has not demonstrated how or why these losses cannot ultimately be recovered if and

when the mining projects in question are permitted to proceed. See Defs.' PI Surreply at 4

(recognizing that the Higgins Declaration, Pl.'s Opp'n re: Dismiss, Ex. 24 (Declaration of James

C. Higgins ("Higgins Decl.") ¶ 9, itself asserts that the resolution of this case in favor of the

plaintiff would allow reinstatement of his company's mining plans, and arguing that this would

allow the company to recoup all or most of the alleged lost revenue). 12

Nonetheless, even assuming arguendo that the purported losses are totally beyond

remediation, the plaintiff has still not shown that they are imminent or certain. The Court has no

reason to doubt Mr. Higgins's assertion that the "coal mined from the Paynter Branch South

Mine could have produced revenues of about $189 million at today's current sales price," Pl.'s

Opp'n re: Dismiss, Ex. 24 (Higgins Decl.) ¶ 8, or his statement that "other costs . . . as a result of

[the decision to forego the removal of the coal reserves at Paynter Branch South Mine] include

the costs of relocating two spreads of equipment, . . . the relocation of about 20 employees to

other mines[,] and the severing of about 20 employees," id., Ex. 24 (Higgins Decl.) ¶ 8. These,

12
Mr. Higgins is the Chief Engineer for Simmons Fork Mining, Inc. and provides services to Paynter Branch
Mining, which operates the Paynter Branch South Mine in West Virginia and whose Section 404 permit application
is one of those subject to review under the EC Process. Pl.'s Opp'n re: Dismiss, Ex. 24 (Higgins Decl.) ¶¶ 1, 5. Mr.
Higgins asserts that since January 2010, Paynter Branch Mining has gathered water quality data in an attempt to
meet the conductivity level set forth in the Guidance, an endeavor that has cost it $114,000. Id., Ex. 24 (Higgins
Decl.) ¶ 7. Mr. Higgins further maintains that the permitting delays have rendered infeasible proceeding with the
Paynter Branch South Mine project, forcing Paynter Branch Mining to forego the retrieval of coal reserves from that
mine. Id., Ex. 24 (Higgins Decl.) ¶ 8.

27
however, are examples of past harm, resulting from a decision made before this case ever

reached this Court. Mr. Higgins does not provide any information on currently planned or future

projects in jeopardy or at risk of incurring losses. 13 While the plight of the workers allegedly

fired by Paynter Branch Mining purportedly due to the delay in the permitted process is

unfortunate, that does not change the fact that "the purpose of an injunction is the prevent future

violations." W.T. Grant Co., 345 U.S. at 633 (emphasis added). Thus, while past harm is

relevant, the ultimate inquiry remains, "'whether there is a real and immediate threat of repeated

injury.'" District of Columbia Common Cause, 858 F.2d at 8-9 (quoting O'Shea v. Littleton, 414

U.S. 488, 496 (1974) (emphasis added). Accordingly, whether or not they may ultimately be

recovered, the plaintiff has not shown that there is a threat of future substantial losses that

warrant the imposition of the "extraordinary" remedy of injunctive relief. Mazurek, 520 U.S. at

972.

To conclude its examination of the plaintiff's allegations of irreparable harm, the Court

need merely state that it agrees with the federal defendants that the plaintiff's argument that the

EC Process and Guidance are impermissibly interfering with the exercise of private property

rights is "baseless." Defs.' PI Opp'n at 38. Indeed, the cases relied upon by the plaintiff do not

support a finding that enforcement of the type of environmental regulations at issue here qualify

as an infringement on the property interests of the plaintiff's members. See RoDa Drilling Co. v.

Siegal, 552 F.3d 1203, 1211 (10th Cir. 2009) (finding that the record clearly established that

13
The same is true of the re-mining projects described in the declaration of William Wells, the Vice President
of United Coal Company. Pl.'s PI Mem., Ex. 9 (Declaration of William Wells, Jr.) ¶¶ 25-26. But even assuming,
for the sake of argument, that Mr. Wells had identified pending future losses, it is unclear that the losses would be of
the magnitude required in this Circuit to warrant the imposition of injunctive relief, i.e., the losses would threaten
the survival of the business. See Power Mobility Coal., 404 F. Supp 2d at 204 (observing that only economic loss
that threatens the survival of a movan'ts business amounts to irreparable harm); Defs.' PI Opp'n at 36 & 36 n.20
(noting that although the Wells declaration does not provide a numeric figure or describe the losses purportedly
suffered from the decision to forego the reclamation project, United Coal's revenues totaled more than $500 million
in 2008).

28
RoDa was being denied its right to interest in its real property because it had been "denied

unfettered ownership" due to the defendant's refusal to transfer record title, and concluding that

"while being denied record title, RoDa simply cannot participate in the everyday operations of its

own interests, and the damages arising from that are incalculable"); Pelfresne v. Village of

Williams Bay, 865 F.2d 877, 883 (7th Cir. 1989) (in a suit seeking to bar demolition of buildings

on the plaintiff's land, the court noted that "[a]s a general rule, interference with the enjoyment or

possession of land is considered irreparable [because] land is viewed as a unique commodity for

which monetary compensation is an inadequate substitute," but found that a similar rule should

not necessarily apply to buildings located on a piece of real estate as buildings, unlike land, can

be repaired or replaced). Clearly, these two cases do not present issues even remotely

comparable to those presented in this case.

While the plaintiff's assertion that a preliminary injunction "in this case will do nothing

more than restore the regulatory environment that existed prior to the unlawful application of the

EC Process and the Guidance to coal mining operations," Pl.'s PI Mem. at 41, may be true, the

fact remains that the plaintiff has made an inadequate showing of irreparable harm. The issuance

of a preliminary injunction to "restore" the previously existing regulatory environment would not

be in line with the purposes of injunctive relief, as the ultimate inquiry would still remain

"whether there is a real and immediate threat of repeated injury." D.C. Common Cause, 858

F.2d at 8-9.

3. Possibility of Substantial Harm to Other Interested Parties

Having concluded that a showing of irreparable harm is lacking, it is not necessary to

engage in a lengthy discussion of the remaining two factors, see Chaplaincy of Full Gospel

Churches, 454 F.3d at 297 (holding that the failure to demonstrate harm provides "grounds for

29
refusing to issue a preliminary injunction, even if the other three factors entering the [preliminary

injunction] calculus merit such relief"), and the Court will therefore address them only briefly.

See id. at 304-05 (observing that "[i]t is of the highest importance to a proper review of the

action of a court in granting or refusing a preliminary injunction that there should be fair

compliance with [Federal Rule of Civil Procedure] 52(a)," which provides that when denying a

preliminary injunction a district court "shall . . . set forth the findings of fact and conclusions of

law which constitute the grounds of its action." Fed. R. Civ. P. 52(a)).

The plaintiff maintains that a preliminary injunction in this case will not harm the federal

defendants or the defendant intervenors as it "will do nothing more than restore the regulatory

environment that existed prior to the" MCIR Assessment, the EC Process, and the Guidance

Memorandum. Pl.'s PI Mem. at 41. Both the federal defendants and the defendant intervenors,

on the other hand, assert that "significant environmental interests are at stake here." Defs.' PI

Opp'n at 41. While it may be true that the challenged EPA actions were "designed to

significantly reduce the harmful environmental consequences of Appalachian surface coal

mining operations, while ensuring that future mining remains consistent with federal laws," id.,

these environmental interests—the actual environmental impact of surface mining—are not

currently before the Court. It may well be the case that the MCIR Assessment, the EC Process,

and the Guidance Memorandum are necessary to protect the environment, especially considering

the assertion made by counsel for the defendant intervenors that the substantive requirements of

the Clean Water Act were essentially ignored by the prior Administration, but the Court need not

make that assessment now. Whether the current or the prior Administration's actions are in

compliance with the APA and the Clean Water Act is an inquiry that can be left for another day.

And the most the Court can say about whether other interested parties would be harmed by the

30
issuance of an injunction is that none of the parties before the Court, based on the record

currently before it, have made a sufficiently compelling case to tip the scales in their favor.

4. The Interests of the Public

The plaintiff maintains that a preliminary injunction is in the public interest as it would

protect "the integrity of the administrative regulatory process" and because the public has a

strong interest in developing domestic sources of energy and job growth. Pl.'s PI Mem. at 42-43.

On the other hand, the federal defendants assert that the public interest is served by allowing the

Corps and the EPA to complete their review and consideration of permit applications in a

thoughtful and considered manner. Defs.' PI Opp'n at 42. The Court, however, finds neither of

these arguments determinative of whether preliminary injunctive relief should be granted in this

case.

V. Conclusion

For the above reasons, the federal defendants' motion to dismiss and the plaintiff's motion

for a preliminary injunction are both DENIED. 14

_____/s/________________
Reggie B. Walton
United States District Judge

14
The Court has issued a contemporaneous Order consistent with this Memorandum Opinion.

31