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