Mingo Logan Coal Co. v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2016 Decided July 19, 2016

No. 14-5305

MINGO LOGAN COAL COMPANY,
APPELLANT

v.

ENVIRONMENTAL PROTECTION AGENCY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00541)

Paul D. Clement argued the cause for the appellant.
Jeffrey M. Harris, Nathan A. Sales, Robert M. Rolfe, George P.
Sibley III, Virginia S. Albrecht and Deidre G. Duncan were
with him on brief.

Matthew Littleton, Attorney, United States Department of
Justice, argued the cause for the appellee. John C. Cruden,
Assistant Attorney General, Aaron P. Avila, Mark R. Haag,
Cynthia J. Morris, Kenneth C. Amaditz, Attorneys, Stefania D.
Shamet, Counsel, United States Environmental Protection
Agency, and Ann D. Navaro, Assistant Chief Counsel for
Litigation, were with him on brief.
 2
Emma C. Cheuse, Jennifer C. Chavez, and Benjamin A.
Luckett were on brief for the amici curiae West Virginia
Highlands Conservancy, et al. in support of the appellee.

Before: HENDERSON, KAVANAUGH and SRINIVASAN,
Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

KAREN LECRAFT HENDERSON, Circuit Judge: In 2007,
the United States Army Corps of Engineers (Corps) issued
Mingo Logan Coal Co. (Mingo Logan) a permit to excavate the
tops of several West Virginia mountains, extract exposed coal
and dispose of the excess soil and rock in three surrounding
valleys containing streams. Four years later, after additional
study, the United States Environmental Protection Agency
(EPA) decided that the project would result in “unacceptable
adverse effect[s]” to the environment. See 33 U.S.C.
§ 1344(c). The EPA therefore withdrew approval from two of
the disposal sites, which together “make up roughly eighty
eight percent of the total discharge area authorized by the
permit.” Mingo Logan Coal Co. v. EPA (Mingo Logan I), 850
F. Supp. 2d 133, 137 (D.D.C. 2012). In 2013, Mingo Logan
challenged the EPA’s statutory authority to withdraw the two
sites from the Corps permit after it had been issued but we
determined that the Clean Water Act (CWA) authorized the
EPA to do so. See Mingo Logan Coal Co. v. EPA (Mingo
Logan II), 714 F.3d 608, 616 (D.C. Cir. 2013). We then
remanded the case to the district court to consider Mingo
Logan’s remaining Administrative Procedure Act (APA)
challenges. See id. The district court thereafter rejected
them. See Mingo Logan Coal Co. v. EPA (Mingo Logan III),
70 F. Supp. 3d 151, 183 (D.D.C. 2014).
 3
Mingo Logan now appeals the district court’s resolution of
its APA claims. Specifically, the company argues that the
EPA failed to engage in reasoned decisionmaking by ignoring
Mingo Logan’s reliance on the initial permit, impermissibly
considering the effects of downstream water quality and failing
to explain adequately why the project’s environmental effects
were so unacceptable as to justify withdrawal. We conclude
that the EPA did not violate the APA in withdrawing
specification of certain disposal areas from the permit; rather, it
considered the relevant factors and adequately explained its
decision. The EPA’s ex post withdrawal is a product of its
broad veto authority under the CWA, not a procedural defect.
Accordingly, we affirm.

I.

A. Statutory and Regulatory Background

Under the CWA, 33 U.S.C. §§ 1251 et seq., a party must
generally obtain a permit from the relevant state and/or federal
authority before discharging “any pollutant” into “navigable
waters.” 1 See id. §§ 1311(a), 1341–45. Two categories of
permits are involved in this case: a permit for the discharge of
“dredged or fill material” under section 404 of the Act, see id.
§ 1344, and a permit for the discharge of all other pollutants
under section 402, see id. § 1342.

1. Section 404

Under section 404, the Corps and qualified states are
authorized to issue permits allowing “the discharge of dredged
or fill material” into bodies of water “at specified disposal

1
The CWA defines “navigable waters” as “the waters of the
United States, including the territorial seas.” 33 U.S.C. § 1362(7).
 4
sites.” Id. § 1344(a), (g). The permit is required if, as here, a
permit applicant plans to remove soil or rock from one location
(i.e., “fill material” 2) and dispose of it into “navigable waters.”
See id. § 1344(a). The Corps specifies sites for disposal of
dredge-and-fill material in accordance with so-called 404(b)
Guidelines it has developed jointly with the EPA. See id.
§ 1344(b). Once the Corps has issued a 404 permit, it retains
discretion to “modify, suspend, or revoke” it. 33 C.F.R.
§ 325.7(a). “Among the factors to be considered” by the
Corps in making a revocation decision are:

the extent of the permittee’s compliance with the
terms and conditions of the permit; whether or not
circumstances relating to the authorized activity have
changed since the permit was issued or extended, and
the continuing adequacy of or need for the permit
conditions; any significant objections to the
authorized activity which were not earlier considered;
revisions to applicable statutory and/or regulatory
authorities; and the extent to which modification,
suspension, or other action would adversely affect
plans, investments and actions the permittee has
reasonably made or taken in reliance on the permit.

Id.

2
Corps regulations define “fill material” as “material placed
in waters of the United States where the material has the effect of (i)
[r]eplacing any portion of a water of the United States with dry
land[] or (ii) [c]hanging the bottom elevation of any portion of a
water of the United States.” 33 C.F.R. § 323.2(e)(1). Examples
include “rock, sand, soil, clay, plastics, construction debris, wood
chips, [and] overburden from mining or other excavation activities.”
Id. § 323.2(e)(2).
 5
Although the EPA does not issue the 404 permit directly, it
has “a broad environmental ‘backstop’ authority over the
[Corps’s] discharge site selection.” Mingo Logan II, 714 F.3d
at 612. Specifically, under section 404(c), the EPA may
“deny,” “restrict” or “withdraw[]” specification of a site for
disposal of dredge-and-fill material. 33 U.S.C. § 1344(c).
The EPA is authorized to exercise this authority “whenever
[the EPA Administrator] determines, after notice and
opportunity for public hearings, that the discharge of such
materials into such area [specified for disposal] will have an
unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas.” Id. (emphasis
added). In Mingo Logan II, we held that the EPA could
exercise this “backstop” authority both pre-permit and
post-permit; that is, the EPA may prevent the Corps from
issuing a 404 permit specifying a disposal site or it may
withdraw specification of a disposal site after the Corps has
issued a permit. Mingo Logan II, 714 F.3d at 612–14, 616.

EPA regulations further define the adverse environmental
effects the Administrator must identify before stepping in to
deny, restrict or withdraw a 404 permit. Specifically, the EPA
has interpreted “unacceptable adverse effect” to mean an
“impact on an aquatic or wetland ecosystem which is likely to
result in significant degradation of municipal water supplies
(including surface or ground water) or significant loss of or
damage to fisheries, shellfishing, or wildlife habitat or
recreation areas.” 40 C.F.R. § 231.2(e) (emphases added).
When the EPA restricts or withdraws areas specified for
disposal in a validly issued permit, the entire permit is not
necessarily invalidated; rather, the permit is “in effect amended
so that discharges at the previously specified disposal sites are
no longer in ‘[c]ompliance with’ the permit.” Mingo Logan
II, 714 F.3d at 615 (alteration in original) (quoting 33 U.S.C.
 6
§ 1344(p)). Thus, to the extent a site passes EPA muster, the
permittee may continue to dispose of dredge-and-fill material
thereat. See id. at 615 & n.5.

2. Section 402

Section 402 of the CWA establishes a separate permitting
scheme, called the National Pollutant Discharge Elimination
System (NPDES), under which the EPA is authorized to issue a
permit for the discharge of all pollutants other than
dredge-and-fill material. See 33 U.S.C. § 1342(a); see also
Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557
U.S. 261, 273 (2009). Alternatively, a state may assume
authority for issuing a NPDES permit “for discharges into
navigable waters within its jurisdiction.” 33 U.S.C.
§ 1342(b). If a state submits a description of its planned
permitting program to the EPA and its plan meets the relevant
CWA criteria, the EPA “shall approve” the program. Id.
The state then becomes responsible for issuing a NPDES
permit for pollutant discharge, see id., and the federal NPDES
permitting program is suspended for qualified waters within
that state’s jurisdiction, see id. § 1342(c)(1).

The EPA, however, maintains an oversight role. It may
“withdraw approval of [the state] program” if it determines that
the program is not being administered in accordance with the
CWA and the state takes no corrective action. See id.
§ 1342(c)(3). Further, a state must submit to the EPA a copy
of each permit application it receives and must keep the EPA
informed of the state’s consideration of the application. Id.
§ 1342(d)(1). The EPA, acting through its Administrator,
may object to the issuance of a state NPDES permit within
ninety days of receipt thereof and, if it does so, the state may
not issue the permit. See id. § 1342(d)(2). If the state fails to
revise the permit to comply with CWA guidelines and
 7
requirements, the EPA may issue a revised permit that
complies with the CWA. See id. § 1342(d)(4). Importantly,
“[o]nce a section 402 permit has been issued, it may only be
modified by the entity that issued the permit.” Mingo Logan
III, 70 F. Supp. 3d at 155 (citing 40 C.F.R. §§ 122.2, 122.62,
124.5(c)).

B. Factual Background

In 1997, Hobet Mining, Inc., Mingo Logan’s predecessor,
began the process of securing the various permits required for
operation of the Spruce No. 1 Mine, a proposed large-scale
surface mining operation in West Virginia. Mingo Logan
planned to use a surface-mining technique known as
mountaintop mining at Spruce No. 1, whereby large swathes of
land are removed from the surface, exposing coal deposits
underneath. See generally Ohio Valley Envtl. Coal. v.
Aracoma Coal Co., 556 F.3d 177, 186 (4th Cir. 2009). The
excess soil and rock (“spoil” or “overburden”) is then relocated
to adjacent valleys, “creating a ‘valley fill’ that buries
intermittent and perennial streams in the process.” Id.
Runoff water from the valley fill is collected in sediment
ponds, where sediment suspended in the runoff water is
allowed to settle. Id. The water collected in the ponds is then
treated and discharged back into natural streams. Id.

Mingo Logan’s final proposal for the mine designated
three sites for disposal of spoil, resulting in the burial of
approximately 7.48 miles of three streams: (1) Seng Camp
Creek; (2) Pigeonroost Branch; and (3) Oldhouse Branch.
Because the streams were also going to be affected by the
discharge of treated water, the project required both a 404
permit from the Corps for disposal of the spoil and an NPDES
permit from West Virginia, which had secured an
EPA-approved permitting plan under section 402.
 8
Hobet Mining initiated the application process for a
NPDES permit from West Virginia’s Department of
Environmental Protection (WVDEP) in late 1997. Consistent
with its CWA obligations, WVDEP notified the EPA of the
application and forwarded it a proposed permit. The EPA
initially objected but, after WVDEP placed additional
conditions on the NPDES permit, the EPA withdrew its
objections in December 1998 and approved the modified
permit in January 1999. West Virginia thus issued a valid
NPDES permit to Hobet Mining on January 11, 1999. The
permit was modified in 2003 and 2005, which modifications
were eventually approved by the EPA. The NPDES permit
has since been renewed and remains in effect.

The 404 permitting process was much more extensive.
Hobet Mining first applied to the Corps for an individual 404
permit in 1999, triggering a lengthy review process. After a
seven-year consultation with Mingo Logan, the EPA and West
Virginia, the Corps produced a 1600-page draft Environmental
Impact Statement (EIS) on March 31, 2006. Although the
EPA “expressed its concern that ‘even with the best practices,
mountaintop mining yields significant and unavoidable
environmental impacts that had not been adequately described
in the document,’ ” Mingo Logan II, 714 F.3d at 610 (quoting
Letter from EPA, Region III to Corps, Huntington Dist., at 1
(June 16, 2006)), it ultimately “declined to pursue a[n] . . .
objection” to the issuance of a 404 permit, id. Specifically, in
an email, William Hoffman, Director of the EPA Office of
Environmental Programs, told the Corps that it “ha[d] no
intention of taking [its] Spruce Mine concerns any further from
a Section 404 standpoint.” E-mail from EPA to Corps (Nov.
2, 2006), Joint App’x (J.A.) 292. On January 22, 2007, the
Corps issued the 404 permit allowing the disposal of spoil into
the three specified stream areas.
 9
Mingo Logan’s 404 permit was almost immediately
challenged in court by environmental groups, which added the
permit to ongoing litigation challenging other coal-mining
permits. See Ohio Valley Envtl. Coal. v. U.S. Army Corps of
Eng’rs (OVEC), 243 F.R.D. 253, 255, 257 (S.D.W. Va. 2007). 3
Pursuant to an agreement it reached with the environmental
plaintiffs, Mingo Logan began operations at the Spruce Mine
in 2007 but limited its disposal of spoil to a single valley
fill—the Seng Camp Creek disposal site. The other two
disposal sites—Pigeonroost Branch and Oldhouse
Branch—remained unused.

On September 3, 2009, the EPA stepped in. It requested
that the Corps use its discretionary authority to suspend, revoke
or modify the permit based on “new information and
circumstances” that “justif[ied] reconsideration of the permit.”
Letter from EPA, Region III to Corps, Huntington Dist., at 1
(Sept. 3, 2009), J.A. 309. The Corps sought comment from
Mingo Logan and West Virginia; both opposed revoking,
suspending or modifying the permit and asserted that the
EPA’s concerns were not based on new information. The
Corps rejected the EPA request on September 30, 2009. After
addressing each of the EPA’s concerns, the Corps “determined
that no additional evaluation of the project’s effects on the
environment are warranted, the permit will not be suspended,

3
The environmental litigation was stayed once the EPA
requested that the Corps revoke Mingo Logan’s 404 permit, see
OVEC, 2009 WL 3014943, at *1–2 (S.D.W. Va. Sept. 15, 2009), and
the stay was extended once the EPA initiated its review of the permit
under section 404(c), see OVEC, 2009 WL 3424175, at *1–4
(S.D.W. Va. Oct. 21, 2009). It remains stayed as it relates to
Mingo’s use of the Pigeonroost Branch and Oldhouse Branch
disposal sites. See OVEC, Civil Action No. 3:05-0784 (Aug. 9,
2012), ECF No. 525.
 10
modified or revoked, and a supplemental EIS will not be
prepared.” Letter from Corps, Huntington Dist. to EPA,
Region III, at 4 (Sept. 30, 2009), J.A. 331.

In response, on April 2, 2010, the EPA intervened directly.
Invoking its veto authority under section 404(c), the EPA
published a Proposed Determination withdrawing the 404
permit specification of the (as yet unused) Pigeonroost and
Oldhouse Branch disposal sites. These disposal sites together
amounted to approximately eighty-eight per cent of the area
the original permit allowed for valley fills. 4 See Mingo Logan
I, 850 F. Supp. 2d at 137. After holding a public hearing and
receiving comments, the EPA ultimately issued a Final
Determination on January 13, 2011, withdrawing specification
of the two disposal sites.

The EPA gave two primary reasons for its withdrawal:
(1) the “unacceptable adverse impacts” resulting from “direct
impacts to wildlife and wildlife habitat” in each area where the
fill was in fact to occur (the fill “footprint”), see Final
Determination of the U.S. Environmental Protection Agency
Pursuant to § 404(c) of the Clean Water Act Concerning the
Spruce No. 1 Mine, Logan County, West Virginia (Final
Determination), at 47, 50 (Jan. 13, 2011); and (2) the
“[u]nacceptable adverse impacts” on wildlife occurring
“downstream of the footprint of the fills and sediment ponds,”
id. at 50. As to the first basis, the EPA determined that “[t]he
destruction of 6.6 miles of high quality stream habitat . . . , and
the subsequent loss of many populations of

4
Due to the amount of area withdrawn, Mingo Logan refers to
the challenged EPA decision as the “revocation” or “withdrawal” of
its permit and we follow suit. See, e.g., Appellant’s Br. 11, 18. We
note, however, that Mingo Logan’s 404 permit remains in effect at
the Seng Camp Creek site.
 11
macroinvertebrates, salamanders, fish and other wildlife
dependent upon that aquatic habitat area for survival, . . . will
result in a loss of regional biodiversity and the broader
ecosystem functions these populations provide.” Id. at 47. It
cited specific concerns for each population described and, in
view of its conclusion that the affected streams “are some of
the last, rare and important high quality streams in the
watershed,” it decided that the adverse effect on the local
wildlife “is one that the aquatic ecosystem cannot afford.” Id.
at 50. As for the adverse environmental impact downstream,
the EPA concluded that removing the Pigeonroost and
Oldhouse Branches “as sources of freshwater dilution and
converting them to sources of pollution” would increase water
contamination and salinity, both producing a negative effect on
various wildlife, including macroinvertebrates, salamanders,
fish and water-dependent birds. Id. at 50, 60–73.

C. Procedural Background

Once the EPA issued its Final Determination, Mingo
Logan filed suit in district court, alleging that the EPA lacked
statutory authority under the CWA to revoke a valid 404 permit
after the Corps had issued it and that the EPA’s Final
Determination was, for numerous reasons, arbitrary,
capricious, or otherwise contrary to law in violation of the
Administrative Procedure Act (APA), 5 U.S.C. § 706. See
Mingo Logan III, 70 F. Supp. 3d at 160. We resolved the first
claim in Mingo Logan II, upholding the EPA’s authority under
section 404(c) of the CWA to withdraw specification of
spoil-disposal sites after the Corps had issued a 404 permit.
See 714 F.3d at 616. We remanded the APA claim to the
district court. Id.

On remand, the district court concluded that the EPA’s
Final Determination complied with the APA. See Mingo
 12
Logan III, 70 F. Supp. 3d at 154–55. It noted that both bases
the EPA asserted for withdrawing the permit—the direct
effects to wildlife within the valley fills’ footprint and the
effects of the valley fills on downstream
wildlife—independently supported its revocation decision,
concluding that the EPA had not acted arbitrarily or
capriciously in identifying “unacceptable adverse effect[s]”
under both rationales. Id. at 175–76 (effects within the
footprint); id. at 181–83 (downstream effects). Accordingly,
it granted summary judgment to the EPA. Id. at 183. Mingo
Logan now appeals. Our review is de novo. Murphy v. Exec.
Office for U.S. Attorneys, 789 F.3d 204, 208 (D.C. Cir. 2015);
see also Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 814
(D.C. Cir. 2002) (“[W]e review the administrative action
directly, according no particular deference to the judgment of
the District Court.”).

II.

The general legal principles attending our review are
well-settled. The APA directs us to “set aside agency action”
that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Agency action is “arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, [or] offered an explanation for its decision that runs
counter to the evidence before the agency.” Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). Although we must ensure that “an
agency’s decreed result [is] within the scope of its lawful
authority” and that “the process by which it reaches that result
[is] logical and rational,” Michigan v. EPA, 135 S. Ct. 2699,
2706 (2015) (quoting Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S. 359, 374 (1998)), we are “not to substitute
 13
[our] judgment for that of the agency,” State Farm, 463 U.S. at
43. Whether we would have done what the agency did is
immaterial; so long as the agency “examine[d] the relevant
data and articulate[d] a satisfactory explanation for its action[,]
including a ‘rational connection between the facts found and
the choice made,’ ” we will ordinarily uphold it. Id. (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)).

When an agency changes policy, however, it must in some
cases “provide a more detailed justification than what would
suffice for a new policy created on a blank slate.” FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009). Changing
policy does not, on its own, trigger an especially “demanding
burden of justification,” Ark Initiative v. Tidwell, 816 F.3d 119,
127 (D.C. Cir. 2016); indeed, the agency “need not
demonstrate to a court’s satisfaction that the reasons for the
new policy are better than the reasons for the old one,” Fox,
556 U.S. at 515 (emphasis in original). That said, if a “new
policy rests upon factual findings that contradict those which
underlay [an agency’s] prior policy,” the agency “must”
provide “a more detailed justification” for its action. Id. The
same is true if the agency’s “prior policy has engendered
serious reliance interests that must be taken into account.” Id.
In such cases, in order to offer “a satisfactory explanation” for
its action, “including a rational connection between the facts
found and the choice made,” State Farm, 463 U.S. at 43
(internal quotation marks omitted), the agency must give “a
reasoned explanation . . . for disregarding facts and
circumstances that underlay or were engendered by the prior
policy,” Fox, 556 U.S. at 516.

In this case, Mingo Logan claims that the EPA’s
post-permit revocation is the epitome of arbitrary-and-
capricious agency action. Not only did the EPA “entirely
 14
fail[] to consider an important aspect of the problem,” Mingo
Logan claims, it also “relied on factors which Congress has not
intended it to consider” and “offered an explanation for its
decision that runs counter to the evidence.” See State Farm,
463 U.S. at 43. This “rare and impressive trifecta,”
Appellant’s Br. 4, is particularly egregious, Mingo Logan
avers, given that the EPA was subject to Fox’s more detailed
justification standard, see 556 U.S. at 515–16. As Mingo
Logan sees it, because the EPA did not veto the Spruce No. 1
permit the first time around, it must provide a weighty basis for
withdrawing specification of two disposal sites four years later.
We disagree with Mingo Logan’s assessment and address each
prong of the alleged “trifecta” in turn.

A. EPA’s Consideration of Relevant Factors

Mingo Logan first argues that the EPA “entirely failed to
consider an important aspect of the problem”—the costs
Mingo Logan incurred in reliance on the permit and its history
of compliance with the permit’s conditions. Appellant’s Br.
18–19 (quoting State Farm, 463 U.S. at 43). As Mingo Logan
sees it, the EPA may revoke a permit only if it balances
resulting adverse environmental effects against the permittee’s
sunk costs and record of permit compliance; “[i]n practice, that
means that [the] EPA may withdraw a specification when
circumstances have changed radically or when the withdrawal
has only a minor impact on the operations envisioned (and
reliance interests generated) by the permit.” Id. at 18.
Because the EPA did not “balance” these “competing
considerations,” see id., but instead based its decision only on
the existence vel non of adverse environmental effects, Mingo
Logan cries foul.

In response, the EPA concedes that it did not consider
Mingo Logan’s reliance costs or its compliance history and, in
 15
its view, neither the CWA nor the APA requires it to do so. It
contends, however, that we need not reach this issue because
Mingo Logan failed to make the argument to the agency or to
the district court and has thus forfeited it.

We agree with the EPA that the argument is forfeited and
doubly so. “Simple fairness to those who are engaged in the
tasks of administration, and to litigants, requires as a general
rule that courts should not topple over administrative decisions
unless the administrative body not only has erred but has erred
against objection made at the time appropriate under its
practice.” United States v. L.A. Tucker Truck Lines, Inc., 344
U.S. 33, 37 (1952). Thus, “[a]s a general rule, claims not
presented to [an] agency may not be made for the first time to a
reviewing court.” Omnipoint Corp. v. FCC, 78 F.3d 620, 635
(D.C. Cir. 1996); see also Nat’l Wildlife Fed. v. EPA, 286 F.3d
554, 562 (D.C. Cir. 2002) (“It is well established that issues not
raised in comments before the agency are waived and this
Court will not consider them.”); Vill. of Barrington v. Surface
Transp. Bd., 636 F.3d 650, 655 (D.C. Cir. 2011) (parties must
“forcefully present[] their arguments at the time appropriate
under [agency] practice or else waive the right to raise those
arguments on appeal” (alterations in original) (citations and
internal quotation marks omitted)). The same rule applies on
appeal from district court judgments. “Generally, an
argument not made in the lower tribunal is deemed forfeited
and will not be entertained [on appeal] absent exceptional
circumstances.” Flynn v. Comm’r, 269 F.3d 1064, 1068–69
(D.C. Cir. 2001) (internal quotation marks omitted).

Here, Mingo Logan did not argue the reliance-costs and
compliance-history issue before the EPA or in district court,
notwithstanding numerous opportunities to do so. Indeed, the
EPA’s process for finalizing its decision afforded Mingo
Logan numerous chances to make the claim. The EPA first
 16
published a Proposed Determination detailing its
environmental concerns in part as follows: “[C]onstruction of
Spruce No. 1 Mine as authorized would destroy streams and
habitat, cause significant degradation of on-site and
downstream water quality, and could therefore result in
unacceptable adverse impacts to wildlife and fishery
resources.” Proposed Determination to Prohibit, Restrict, or
Deny the Specification, or the Use for Specification (Including
Withdrawal of Specification), of an Area as a Disposal Site;
Spruce No. 1 Surface Mine, Logan County, WV, 75 Fed Reg.
16,788, 16,789 (Apr. 2, 2010). It then proposed to withdraw
specification of the Pigeonroost and Oldhouse Branch sites,
see id. at 16,805, and solicited comments on its proposal, see
id. at 16,807–08, thereby providing Mingo Logan notice and an
opportunity to put forward the factors that it believed the EPA
was required to consider—and had failed to consider—in
reaching its initial conclusion.

Mingo Logan responded to the Proposed Determination
with 172 pages of comments. Conspicuously absent
therefrom, however, was any argument that the EPA had to
balance the environmental effects against the costs Mingo
Logan had incurred in reliance on the permit before reaching a
final decision. 5 Equally absent was a detailing of these costs

5
Indeed, Mingo Logan’s comments in response to the EPA’s
Proposed Determination seemed to accept the EPA’s merits position
on the reliance-costs issue—that the EPA need base its decision on
environmental factors only. Mingo Logan argued that the EPA
could consider only the adverse environmental effects of the project
on the resources specifically listed in section 404(c)—(1) municipal
water supplies, (2) shellfishing areas/fisheries, (3) wildlife habitat
and (4) recreation areas. As Mingo Logan put it, “[t]he 404(c)
resources are therefore included to the exclusion of other resources,
areas and concerns. The familiar principle of expressio unius est
exclusio alterius dictates that when a statute includes particular
 17
the EPA, under Mingo Logan’s theory, was required to
consider. Indeed, other than a single reference in introductory
factual material mentioning the “millions of dollars” Mingo
Logan allegedly spent “preparing the Spruce No. 1 site and
commencing its operations” after the permit had issued, Mingo
Logan never discussed what costs the EPA should consider or
how those costs stacked up against the environmental concerns
the EPA had identified. See Mingo Logan Coal Co.,
Comments in Response and in Opposition to the Proposed
Determination 33 (June 3, 2010), J.A. 403. That a detailed
statement of costs is missing here is unsurprising, of
course—Mingo Logan never attempted to argue that the EPA
was required to balance adverse effects against reliance costs
in the first place.

After reviewing these and other comments on the
Proposed Determination, an EPA Regional Director then
published a Recommended Determination, again proposing to
withdraw specification of the Pigeonroost Branch and
Oldhouse Branch sites and again inviting comments. See
Recommended Determination of the U.S. Environmental
Protection Agency Region III Pursuant to Section 404(c) of the
Clean Water Act (Sept. 24, 2010). Yet again, other than a
single reference in introductory material—“[n]ow, more than
three years after the issuance of the permit, as Mingo Logan is
actively mining the site in an attempt to recoup its decade-long
investment, EPA has declared that the impacts that it had
approved are now unacceptable, and seeks to revoke the
permit,” Mingo Logan Coal. Co., Comments in Response and
in Opposition to the Recommended Determination 2 (Nov. 29,

language to describe the scope of its application, this is to the
exclusion of other areas of application.” Mingo Logan Coal Co.,
Comments in Response and in Opposition to the Proposed
Determination 66 (June 3, 2010) (second emphasis added), J.A. 436.
 18
2010)—Mingo Logan never claimed that the EPA had to
balance reliance costs against environmental effects 6 nor did it
detail those costs. Accordingly, by failing to make the claim
before the EPA, Mingo Logan forfeited it.

Once the EPA published its Final Determination
withdrawing specification of the disposal sites, Mingo Logan
filed suit, eventually composed of a fourteen-count amended
complaint. None of the counts alleged that the EPA’s Final
Determination was arbitrary and capricious because it had

6
In fact, in its comments responding to the Recommended
Determination, Mingo Logan did suggest for the first time that some
kind of balancing was required but, in listing the relevant factors, it
did not mention reliance costs: “ ‘Unacceptable,’ like ‘significant,’
is a relative term that must be weighed against the endangerment of
the species, the size of the project, and any economic benefit from
the project.” Mingo Logan Coal Co., Comments in Response and in
Opposition to the Recommended Determination 6 n.11 (Nov. 29,
2010). Moreover, even this argument was not presented in the
context of an arbitrary-and-capricious challenge. See id. at 6. Our
dissenting colleague nevertheless argues that it is sufficient to
preserve Mingo Logan’s costs claim. See Dissenting Op. at 16.
Not so. The comment says nothing whatsoever about reliance costs
so it cannot preserve Mingo Logan’s claim on that point. The
dissent asserts instead that it preserves some claim that a broader
balancing is required. See id. Mingo Logan (once again),
however, makes no such broad cost-balancing argument to us. It
argues that its reliance costs and compliance history should have
been considered—relying heavily on the language of Fox and the
permit’s role in encouraging reliance—but it never argues for the
kind of broad balancing the dissent suggests is applicable—e.g., the
EPA must consider “the harm to. . . coal miners who had been or
would be employed at the mine” or the fact that the mine could
“contribute millions of dollars to the local economy and lower the
price of electricity.” See id. at 7–8.
 19
failed to weigh Mingo Logan’s reliance costs. Again, other
than one general allegation in the factual background—that
“[a]fter receiving its Permit, Mingo Logan spent millions of
dollars preparing the site and commencing construction and
operations,” Am. Compl. ¶ 141—Mingo Logan did not assert
an APA claim based on the EPA’s failure to consider its
reliance costs.

After we decided Mingo Logan II, the case returned to the
district court for consideration of the procedural issues. At the
district court’s request, Mingo Logan submitted a
supplemental brief summarizing the issues remaining for
review. In its brief, Mingo Logan asked the court to resolve
“four key questions of law”:

(1) “Can [the] EPA . . . base a section 404(c)
decision on downstream water quality impacts that
are regulated by West Virginia under section 402?”

(2) “Can [the] EPA base a section 404(c)
determination on impacts caused by mining features
other than the discharges authorized by Mingo
Logan’s section 404 permit?”

(3) “Assuming arguendo that [the] EPA can base its
section 404(c) veto on downstream water effects
regulated by section 402, can [the] EPA use water
quality standards other than West Virginia’s
duly-adopted water quality standards to determine
whether such effects are ‘unacceptable’ within the
meaning of section 404(c)?” and

(4) “After the Corps has issued a permit under
section 404(a), can [the] EPA act under section 404(c)
in the absence of substantial new information that was
not available prior to the issuance of the permit?”
 20
Supplemental Br. in Supp. of Mingo Logan’s Mot. for Summ.
J. at 1–3, Mingo Logan III, 70 F. Supp. 3d 151 (No. 10-cv-
541), ECF No. 99. Once the court resolved these four
questions, according to Mingo Logan, it could move on to the
fifth and final question warranting review:

(5) “Did [the] EPA demonstrate, based on
substantial new information, that the discharges of fill
material authorized by the Corps permit would cause
‘unacceptable adverse effects’ on wildlife?”

Id. at 3.

Conspicuously absent from this list—yet again—is the
question Mingo Logan now presents for our review—whether
the EPA’s failure to consider Mingo Logan’s reliance costs and
compliance history renders its decision arbitrary and
capricious. It is also worth noting, for good measure, that in
an hours-long hearing on the procedural issues, covering over
one hundred pages of transcript, Mingo Logan never once
raised the reliance-costs claim to the district court. See
generally Transcript of 7/30/14 Hearing, Mingo Logan III, 70
F. Supp. 3d 151 (No. 10-cv-541). Unsurprisingly, having
never been presented with the question, the district court did
not address it.

This record notwithstanding, the dissent disagrees with
our conclusion that Mingo Logan forfeited its reliance-costs
claim. Dissenting Op. at 15. Our disagreement, it seems, is
attributable to two differences between us. First, he believes
that merely mentioning the “millions of dollars” allegedly
spent in reliance upon a permit is sufficient to preserve an
argument that the EPA must weigh those reliance costs against
environmental harms, see id. at 16–17, 20; we do not. But, as
recently noted in Encino Motorcars, LLC v. Navarro, “[t]he
extent to which [an agency] is obliged to address reliance will
 21
be affected by the thoroughness of public comments it receives
on the issue. . . . An agency cannot be faulted for failing to
discuss at length matters only cursorily raised before it.” No.
15-415, 2016 WL 3369424, at *9 n.2 (2016) (Ginsburg, J.,
concurring). Our cases have likewise demanded that parties
“forcefully present[]” their arguments to the agency to preserve
them on appeal. Vill. of Barrington, 636 F.3d at 656. A
handful of offhand references to “millions of dollars” primarily
in introductory material—and never raised in the context of a
claim that the EPA must balance these costs against the
environmental effects it identified—is insufficient to preserve
the claim Mingo Logan now pursues on appeal.

Requiring a party to make a submission more detailed than
“millions of dollars,” moreover, is not a triumph of form over
function. Because Mingo Logan failed to detail its costs, the
EPA could not have “consider[ed] and justif[ied] the costs of
revoking the permit” as our colleague would require. See
Dissenting Op. at 17. Indeed, we do not quibble with his
general premise—and that of the many legal luminaries he
cites—that an agency should generally weigh the costs of its
action against its benefits. See id. at 5–6. But, on Mingo
Logan’s submission, the EPA would have to ask: Did Mingo
Logan rely on the permit to the tune of two “millions of
dollars” or two hundred “millions of dollars?” What portion
of the “millions” would in fact be lost by withdrawing two
disposal sites inasmuch as Mingo Logan can continue to
discharge spoil at the Seng Camp Creek site and neither the
Pigeonroost Branch site nor the Oldhouse Branch site had
become operational yet? The EPA’s obligation is to engage in
reasoned decisionmaking but Mingo Logan has an obligation
to explain why it believes its reliance costs must be considered
and to supply sufficient information about its costs to allow the
EPA to consider them. “[M]illions of dollars” is not enough.
 22
In support of his view that Mingo Logan preserved its
reliance-costs claim, our dissenting colleague cites a number of
instances in the record where Mingo Logan asserted that the
EPA should be subject to an explanatory standard for
withdrawing a permit different from the standard for objecting
to one initially. See id. at 17–18. In our view, this argument
is distinct from Mingo Logan’s claim that reliance costs must
be considered. Because both arguments rely on language
from Fox, it is tempting to conflate them. But there are
important differences. In its reliance-costs argument, Mingo
Logan claims that the EPA was required to balance the costs it
incurred in reliance on the permit against the environmental
concerns the EPA identified. As the dissent suggests, in that
case the remedy would be to remand to the EPA to do the
necessary balancing. See id. at 22. As discussed, the remedy
informs in part our conclusion that Mingo Logan forfeited that
argument because it failed to detail the costs in a way that the
EPA could do what Mingo Logan now says it should do. See
supra at 15–20.

Mingo Logan’s inadequate-explanation argument, in
contrast, relies on Fox for a different argument. It claims that
the EPA is subject to a heightened standard to justify its
withdrawal decision and that, under that standard, the EPA’s
explanation is insufficient. The remedy regarding this
argument would be a remand to the EPA to better support
revocation but the EPA could not balance reliance costs against
environmental effects in doing so for the reasons already
discussed. It would simply have to do a better job explaining
why withdrawal was necessary in 2011 when it was not so in
2007. Like our colleague, we believe that Mingo Logan
sufficiently pressed this argument before the EPA and in
district court. Indeed, as the dissent points out, see Dissenting
Op. at 16–17, Mingo Logan consistently argued that a different
standard applied post-permit and that, accordingly, the EPA
 23
had to identify substantial new information to support its
post-permit decision. Thus, this argument is properly before
us and we address it (and reject it), see infra 28–35. But
Mingo Logan’s post-permit heightened-standard claim does
not preserve its reliance-costs claim. They are different
claims supported by different arguments. Accordingly,
having been forfeited not once, but twice (and perhaps thrice),
we do not consider Mingo Logan’s reliance-costs claim for the
first time on appeal. 7

B. EPA’s Reliance on Proper Factors

Mingo Logan’s second argument is that the EPA’s
revocation decision was arbitrary and capricious because it

7
In reply to our dissenting colleague’s one-paragraph cri de
coeur characterizing Mingo Logan’s forfeiture as “entirely unfair”
based on EPA’s stance that costs are “irrelevant,” Dissenting Op. at
21, we have an equally pithy reply: A party has an obligation to
substantiate its position, including in the face of its opponent’s
rejection thereof. Cf. L.A. Tucker Truck Lines, Inc., 344 U.S. at 37
(agency’s “predetermined policy” does not absolve party of its
obligation to object thereto). Forfeiture here is hardly “unfair” to
Mingo Logan but, in any event, its minimal proof of its costs—as far
as we can tell—mirrors their de minimis nature. And even if the
EPA could be tagged with the “bait-and-switch” charge—a
proposition we roundly reject—Mingo Logan’s failure to prove up
its costs on review by the district court should mute its lament. In
the end, Mingo Logan at no point—not before the EPA nor in district
court—made any effort to describe its costs or make an argument
about them. In that light, Mingo Logan can hardly now complain
about unfairness. Moreover, as we have noted, supra nn.5–6,
Mingo Logan effectively accepted the EPA’s position on the
relevance of its reliance costs. It is hardly “unfair” to expect Mingo
Logan to have raised whatever arguments it might have about the
EPA’s position before the EPA itself.
 24
“relied on [a] factor[] which Congress has not intended it to
consider,” see State Farm, 463 U.S. at 43—water quality
downstream from the valley fill. As mentioned, the EPA
offered multiple bases for its decision in its Final
Determination. It first identified adverse effects to wildlife
within the footprint of the valley fills—that is, the area where
the spoil was in fact to be disposed of. It then identified
adverse effects to wildlife downstream from the fills
attributable to increased levels of selenium and conductivity8
in downstream water.

Mingo Logan argues that the EPA cannot rely on
downstream water quality as a basis for finding adverse
environmental effects. Because the “Congress has delegated
responsibility for considering water quality to [West Virginia],
not [the] EPA,” Appellant’s Br. 47, and West Virginia has
granted Mingo Logan a section 402 permit that governs
downstream water quality, Mingo Logan argues that the EPA
has intruded upon West Virginia’s exclusive regulatory power
over its “navigable waters,” see 33 U.S.C. § 1342(b). Mingo
Logan also contends that the EPA impermissibly applied its
own water-quality standards in considering downstream
effects. The application of such “ad hoc” standards,
according to Mingo Logan, is arbitrary and capricious.
Appellant’s Br. 56–57.

8
Selenium is “a naturally occurring chemical element that is
an essential micronutrient, but can also have toxic effects following
exposure to excessive amounts.” Final Determination, at 51.
“Conductivity is the ability of a solution to carry an electric current
at a specific temperature” and “is an excellent indicator of the total
concentration of all ions” in a given solution. Id. at 58–59.
Salinity—“the amount of dissolved salt in a given body of
water”—is “often expressed in terms of specific conductivity.” Id.
at 58.
 25
We reject this argument for several reasons. As an initial
matter, section 404(c) allows the EPA to consider the effects of
spoil disposal downstream from the fill itself and downstream
water quality may enter the equation. The statute authorizes
the Administrator “to deny or restrict the use of any defined
area for specification” if he determines “that the discharge of
such materials into such area will have an unacceptable
adverse effect on municipal water supplies, shellfish beds and
fishery areas . . . , wildlife, or recreational areas.” 33 U.S.C.
§ 1344(c). The reference to “municipal water supplies,” id., is
telling; how can the EPA assess whether a valley fill will have
an “unacceptable adverse effect on municipal water supplies”
without considering the effects of the valley fill on downstream
water quality? We have little trouble concluding that, as part
of the EPA’s overall authority, section 404(c) authorizes it to
assess the effects of the fill beyond the fill’s footprint and that
nothing in the statute prohibits water quality from being part of
that assessment.

Mingo Logan essentially concedes the general point; 9 the
real problem, it claims, is that the state of West Virginia has
already determined that the fills will not cause water-quality
problems downstream. Because the Congress has granted
states power to regulate their own water quality under section
402, once a state has signed off on a project by granting a
section 402 permit, Mingo Logan argues, the EPA is not
authorized to reassess water quality under section 404(c) using
its own ad hoc standards. If the EPA does so, Mingo Logan
contends, it impermissibly traverses the Congress’s intent by
ignoring the bright line between section 402 regulation and
section 404 regulation and raises federalism concerns to boot.

9
See Appellant’s Reply Br. 26 (“Mingo Logan [does not]
deny that, in the absence of authorized State action, [the] EPA may
take downstream water quality into account . . . .”).
 26
Mingo Logan’s argument fundamentally misinterprets
what the EPA does in evaluating changes in water quality
attributable to the disposal of spoil in designated streams. It is
true that section 402 grants a qualifying state broad authority to
regulate its water quality, see 33 U.S.C. § 1342, and that
regulation under sections 402 and 404 is generally distinct, see
Coeur Alaska, Inc., 557 U.S. at 274, 276–77. As the district
court concluded, however, there is an important difference
between “regulating” pollutant discharge under section 402
and identifying unacceptable adverse effects on four specific
categories of resources as a result of spoil disposal under
section 404(c). See Mingo Logan III, 70 F. Supp. 3d at 177.
Indeed, we do not take issue with Mingo Logan’s contention
that, here, the primary authority under section 402 lies with
West Virginia. Under the NPDES program, West Virginia
permits the discharge of water from sediment ponds into
natural streams based upon state water-quality criteria and sets
conditions on those discharges to manage the flow of
pollutants into natural waters within its jurisdiction. See 33
U.S.C. § 1342. In contrast, the EPA does none of these
things; it does not intrude on West Virginia’s authority to
regulate water quality under section 402 because the EPA is
not regulating the discharge of pollutants into West Virginia
waters downstream from the fill. It is instead assessing
whether discharging spoil into a particular stream will produce
“unacceptable adverse effect[s]” on wildlife. Id. § 1344(c).
And it evaluates the effects of that spoil—both inside and
outside the fill’s footprint—in making its assessment,
including the changes the spoil might bring about in
downstream water quality.

This raises a third, related point. Although Mingo Logan
makes much of the “EPA’s consideration of water quality,” see
Appellant’s Br. 53, the EPA did not base its revocation
decision on an evaluation of downstream water quality per se;
 27
rather, evaluating downstream water quality was just one step
in its process of evaluating “unacceptable adverse effect[s]” on
wildlife under section 404(c), see 33 U.S.C. § 1344(c). The
EPA must connect conclusions it makes about downstream
water to adverse effects on the specific resources listed in
section 404(c)—municipal water supplies, shellfishing areas or
fisheries, wildlife or recreational areas. See id. It satisfied
this obligation; it pinpointed the requisite connection between
its water quality assessment and its adverse-effects conclusions
regarding section 404(c) resources. 10 Specifically, it relied on
studies showing that selenium levels above five micrograms
per liter produce harmful effects on macroinvertebrates, see
Final Determination, at 60–61, and fish, see id. at 71–72, which
in turn results in negative food-web 11 implications for the
broader ecosystem, see id. at 68. And it included detailed
information—including new information based on actual data
from the Seng Camp Creek site, see infra at 30—supporting its
conclusion that a significant risk of selenium levels regularly
exceeding five micrograms per liter would result at the
Pigeonroost Branch and Oldhouse Branch sites. See Final
Determination, at 52–58. The EPA also explained why

10
The EPA specifically acknowledged that its conclusions
about adverse effects on wildlife were “not dependent on a
conclusion that West Virginia’s water quality standards will be
violated at or downstream of the site.” Final Determination, at 51.
It thus explicitly recognized that its consideration of downstream
water quality was only an intermediate step in its section 404
environmental analysis.
11
The food web refers to the interconnected manner in which
species in an ecosystem act as food sources for others. See Final
Determination, at 32–33; see also Nat’l Ass’n of Home Builders v.
Babbitt, 130 F.3d 1041, 1052 n.11 (D.C. Cir. 1997) (citing E.O
WILSON, THE DIVERSITY OF LIFE 308 (2d ed. 1992)).
 28
elevated levels of conductivity it anticipated to occur
downstream were harmful, citing “an accepted and peer
reviewed approach” for measuring the effects of conductivity
on macroinvertebrates, see id. at 65–67. In addition, it
explained the fact that conductivity in the range it expected
would support golden algae growth, which in turn would have
negative effects on salamanders and fish, see id. at 69–71. In
sum, the EPA’s consideration of downstream water quality as a
means of evaluating the project’s adverse effects on wildlife
was not arbitrary and capricious; rather, it was the product of
reasoned decisionmaking supported by evidence in the record
and based upon the EPA’s technical expertise.

C. EPA’s Explanation of its “Volte Face”

Mingo Logan’s final argument is that the EPA failed to
adequately explain its revocation decision given that it allowed
the 404 permit to proceed four years earlier. Mingo Logan
argues that this change triggers the “more detailed”
justification standard discussed in Fox, 556 U.S. at 515, and
because the “EPA cannot point to any new information—let
alone substantial or more detailed information—that
overcomes” its original decision not to veto the permit,
Appellant’s Br. 32, we must set its Final Determination aside.
Mingo Logan argues further that even under the ordinary APA
explanation standard articulated in State Farm, 463 U.S. at 43,
the EPA has failed to adequately explain its decision to revoke;
the “unacceptable” effects the EPA identified, Mingo Logan
claims, typically result from any large-scale surface coal mine.

The district court rejected Mingo Logan’s assertion that a
more detailed justification standard applies, concluding that,
notwithstanding the EPA’s original acquiescence, it did not
amount to a “policy”; accordingly, the EPA’s subsequent
withdrawal decision was not a change of course triggering the
 29
more detailed Fox standard. Mingo Logan III, 70 F. Supp. 3d
at 163–68. We need not resolve the question of whether a
“more detailed” explanatory standard applies here because we
find the EPA’s explanation adequate even assuming arguendo
that it was required to supply “a more detailed justification” for
its revocation decision, see Fox, 556 U.S. at 515. It
adequately explained how new information arising after the
404 permit issued informed its conclusion that the project
would result in “unacceptable adverse effect[s]” to wildlife.
See 33 U.S.C. § 1344(c). Indeed, the EPA acknowledged
early on in its Final Determination that the game had changed.
Its comments on the matter are worth quoting at length:

Throughout the history of the Spruce No. 1 Surface
Mine . . . Permit, [the] EPA has raised concerns
regarding adverse impacts to the environment.
Additional data and information, including
peer-reviewed scientific studies of the ecoregion,
have become available since permit issuance. The
peer-reviewed literature now reflect[s] a growing
consensus of the importance of headwater streams[]
[and] a growing concern about the adverse ecological
effects of mountaintop removal mining, specifically
with regard to the effects of elevated levels of total
dissolved solids discharged by mining operations on
downstream aquatic ecosystems . . . .

Final Determination, at 8. The EPA then went on to
describe—in detail—its assessment of the “unacceptable
adverse effect[s]” both within the fills’ footprint and
downstream from the valley fill.

Mingo Logan’s challenge to the adequacy of the EPA’s
justification focuses exclusively on the EPA’s discussion of
adverse effects in the valley fills’ footprint; it does not contest
 30
the sufficiency of the EPA’s downstream-effects
justification. 12 And for good reason—the EPA plainly relied
on extensive post-permit information in determining that the
water-chemistry changes wrought by the fills would negatively
affect wildlife. The EPA’s conclusions that increased levels
of selenium and conductivity would cause “unacceptable
adverse effect[s]” to wildlife were based upon data collected
from an adjacent mine from 2007 to 2010, and—most relevant
here—from water sources handling outflow from the Seng
Camp Creek disposal site, the only site that became operational
after the 404 permit was originally issued. As far as
substantial new information goes, it is difficult to think of more
salient post-permit data than that collected from the very mine
under consideration. The post-permit data from the Seng
Camp Creek site and the adjacent mine indicated that selenium
in waters flowing from these sites regularly exceeded the
selenium levels the EPA determined would produce harmful
effects on wildlife. Moreover, the EPA’s discussion of how
changes in water chemistry would negatively affect wildlife
was extensive and also relied on scientific studies published
post-permit, as well as on post-permit data regarding the risk
factors for golden-algae growth and its associated adverse
environmental effects. These explanations relying on new
data are sufficient to satisfy the more detailed explanatory
obligation discussed by Fox. The EPA’s “explanation” for
“disregarding facts and circumstances that underlay or were
engendered by the prior policy” was “reasoned,” Fox, 556 U.S.
at 515–16—new data from the Seng Camp Creek site
confirmed that selenium and conductivity levels were rising to
potentially harmful levels and would cause significant wildlife

12
As discussed, however, Mingo Logan does challenge the
EPA’s authority to consider downstream water quality at all. See
supra at 23–24.
 31
degradation if additional valley fills were constructed at
Pigeonroost Branch and Oldhouse Branch.

The same is true of the EPA’s explanations of the
unacceptable adverse effects on wildlife within the valley fills’
footprint. Although Mingo Logan argues that the EPA’s
explanation fails even the basic APA arbitrary-and-capricious
standard because the allegedly “unacceptable” environmental
effects the EPA identified are the “routine” environmental
impacts associated with any dredge-and-fill discharge,
Appellant’s Br. 44, the EPA explained why it viewed the
adverse effects on wildlife as “significant” and therefore
“unacceptable,” see 40 C.F.R. § 231.2(e), and how new
information developed after the permit issued reasonably
informed its conclusions. The following discussion
summarizes the EPA’s multi-page explanation.

The EPA first noted that the sheer size of the Spruce No. 1
Mine project rebutted Mingo Logan’s characterization of the
project’s effects on wildlife as routine. As the EPA explained,
“[t]he Spruce No. 1 Mine . . . is one of the largest mountaintop
mining projects ever authorized in West Virginia,” affecting
approximately 3.5 square miles and resulting in the burial of
approximately 7.48 miles of high-quality streams. Final
Determination, at 15. “By way of comparison,” the EPA
noted, “the project area would take up a sizeable portion of the
downtown area of Pittsburgh, PA.” Id. Relatedly, the EPA
cited the large number of species within the proposed fill,
noting that watersheds within the Central Appalachian region
are some of the continent’s most biologically diverse and that
the Pigeonroost Branch and Oldhouse Branch watersheds are
no exception. Id. at 30–31, 47. The EPA gave great weight
to both of these factors, explaining that a large part of the
“significance” of the adverse environmental effects it predicted
results from such a large-scale ecosystem disruption in one of
 32
most biologically diverse areas in the country. See id. at 30–
31, 50.

The EPA also detailed the adverse effects—and the
implications for the broader ecosystem—on specific categories
of wildlife. The EPA explained that Pigeonroost Branch and
Oldhouse Branch are home to a particularly diverse group of
macroinvertebrates and wide-scale elimination of these
populations would have a significant negative impact on the
broader “faunal food web” given that macroinvertebrates form
its foundation. Id. at 47, 49–50. The EPA further explained
how burying 6.6 miles 13 of stream will affect other wildlife
directly—salamanders, fish and water-dependent birds. 14 The
EPA estimated that roughly 250,000 salamanders would be
killed within the fills’ footprint (5–6 salamanders per square
meter) and that the large-scale loss of “a key component of the
aquatic food web” will have “broader food web implications,
as they . . . serve as prey for numerous terrestrial and aquatic
species found within the Spruce No. 1 Mine site, including
fish, snakes, birds, mammals, turtles, frogs, crayfish and other
salamanders.” Id. at 48. The EPA also explained that

13
Although the Spruce No. 1 mine called for filling a total of
7.48 miles of streams with spoil, see supra at 31, that number
included the valley fill at the Seng Camp Creek site. The valley fills
at the Pigeonroost Branch and Oldhouse Branch sites would fill 6.6
miles of stream.
14
The district court found that the EPA’s reliance upon the
fills’ effects on a water-dependent bird—the Louisiana
waterthrush—“dances close to the line of what is reasonable” given
that the bird has never been observed in the project area. Mingo
Logan III, 70 F. Supp. 3d at 171 n.23. The EPA has wisely stepped
back from its reliance on this particular adverse effect as necessary to
support its decision. See Appellee’s Br. 45.
 33
sampling data suggested five populations of fish would be
directly—and adversely—affected by the fill. Id. at 38–39,
48–49.

Moreover, these explanations were not, as Mingo Logan
suggests, Appellant’s Br. 44–45, based purely on information
the EPA had at its disposal before the 404 permit issued.
Rather, it relied on a variety of post-permit data to support its
conclusions and, where relevant, explained how circumstances
had changed over time.

First, the EPA’s analysis cited several post-permit studies
suggesting headwater streams like Pigeonroost Branch and
Oldhouse Branch play an outsized role in the creation and
preservation of a robust and diverse regional ecosystem. As
the EPA explained, after the permit was issued, “the scientific
literature reflected a growing consensus of the importance of
headwater streams.” Final Determination, at 20. “Many
[post- permit] studies,” the EPA went on, “now point to the
role headwater streams play in the transport of water,
sediments, organic matter, nutrients, and organisms to
downstream environments; their use by organisms for
spawning or refugia; and their contribution to regional
biodiversity.” Id.

This general shift in perspective on the importance of
headwater streams—undergirded by post-permit scientific
evidence—permeates the EPA’s entire analysis of the
environmental effects of the valley fill within the fills’
footprint. The EPA concluded that many of the direct adverse
effects on wildlife within the disposal area are “unacceptable”
because Pigeonroost Branch and Oldhouse Branch are “some
of the last remaining streams within the Headwaters Spruce
Fork sub-watershed and the larger Coal River sub-basin that
represent ‘least-disturbed’ conditions and habitat that is
 34
essential for many species in the watershed.” Id. at 49.
Consequently, the EPA explained, the streams “perform
critical hydrologic and biological functions, support diverse
and productive biological communities, contribute to
prevention of further degradation of downstream waters, and
play an important role within” the larger regional ecosystem.
Id. Given “the evidence that these streams are some of the
last, rare and important high quality streams in the watershed,”
the EPA concluded that burying 6.6 miles of the streams with
spoil would produce an “adverse impact . . . that the aquatic
ecosystem cannot afford.” Id. at 50.

Second, the EPA discussed additional post-permit
evidence suggesting that its original estimates about the return
of salamanders to the area were flawed. Pre-permit density
measurements suggested that the spoil would kill
approximately 250,000 salamanders within the fill area.
According to the EPA, “it had been assumed that species
populating these waters would return, sometimes years later, to
reestablish a community.” Appellee’s Br. 43–44.
Post-permit data suggested, however, that even after twenty
years, salamanders were not returning as expected to
sedimentation ditches generated by now-closed West Virginia
coal mines. See Final Determination, at 48.

Third, although pre-permit data suggested few fish would
be affected by the project, post-permit data suggested
additional species would experience adverse effects. As the
EPA explained, sampling for the environmental study of the
project suggested only a limited number of species lived in the
Pigeonroost Branch and Oldhouse Branch streams. Id. at 38.
The EPA concluded, however, that the pre-permit data were
not reliable because the sampling had been conducted during a
drought period. See id. It cited post-permit fish sampling
data from 2008 and 2009 that “revealed a fish assemblage” in
 35
the two streams. Id. Specifically, “[m]ottled sculpin, as well
as sporadic populations of smallmouth bass and stonerollers
were collected in Pigeonroost Branch,” whereas “only
blacknose dace and creek chubs” had been found in the stream
in 1999. Id. at 38, 39. And although “[n]o samples were
collected in Oldhouse Branch” in 1999, the data indicated that
blacknose dace and creek chubs also lived in that stream. Id.
at 38–39.

Thus, assuming arguendo that the EPA was subject to the
“more detailed justification” standard described in Fox, 556
U.S. at 515, we conclude that its Final Determination satisfied
that requirement. It plainly relied upon new data—including
data from the Spruce No. 1 Mine site itself—and explained the
relevance of these data in concluding that the project would
have unacceptable adverse effects on wildlife downstream
from the fill sites. It also adequately explained how the valley
fill would have an unacceptable adverse effect on wildlife
within the fill and it specifically explained the new
“consensus” on the importance of headwater streams, id. at 20,
new scientific evidence about salamander repopulation, and
new, more representative data about the fish species living in
the fill area in doing so.

A few words in closing are in order. First, we do not hold
that the EPA is generally exempt from considering costs in
evaluating whether to withdraw a previously approved
disposal site under section 404(c). We need not and do not
decide precisely what the EPA may and must consider in
making a post-permit withdrawal decision; we hold only that it
is not expected to balance costs never presented to it. Second,
we do not hold whether the EPA’s site withdrawal after the
Corps has issued a 404 permit must always satisfy the more
detailed justification standard articulated in Fox, 556 U.S. at
515–16. Again, we need not and do not decide that question
 36
because, even assuming the Fox standard applies, the EPA’s
explanation satisfies it. Finally, we note that post-permit
withdrawal under section 404(c) is a mighty power and its
exercise will perhaps inevitably leave a permittee feeling as if
the rug has been pulled out from under it. Nonetheless, this
power is one the Congress has authorized the EPA to exercise
and where, as here, the EPA has adequately explained why
mine spoil disposal at two sites would cause “unacceptable
adverse effect[s]” on “wildlife,” 33 U.S.C. § 1344(c), we must
uphold its decision.

For the foregoing reasons, the judgment of the district
court is affirmed.

So ordered.
 KAVANAUGH, Circuit Judge, dissenting: EPA must
consider both costs and benefits before it vetoes or revokes a
permit under Section 404 of the Clean Water Act. That much
is common sense and settled law. See Michigan v. EPA, 135
S. Ct. 2699 (2015). Here, however, EPA revoked a Clean
Water Act permit without considering the costs of doing so.
For that reason, EPA’s decision must be vacated. In my view,
EPA must go back to the drawing board and weigh both the
costs and benefits of revoking the permit before making its
decision.

The case concerns Mingo Logan, a coal mining company
that planned to engage in surface coal mining in West
Virginia. Under the Clean Water Act, the Company first
needed to obtain what is known as a Section 404 permit. The
Section 404 permit would allow Mingo Logan to dump into
nearby streams the excess rubble generated by its surface
mining operation – known under the Act as “fill material.”
Mingo Logan’s ability to dispose of fill material into those
streams was critical to the viability of the Company’s planned
coal mining operation.

By statute, the Army Corps of Engineers oversees
Section 404 permits. The Corps has the power to grant and
revoke permits. To grant a Section 404 permit, the Corps
must determine that the permit application meets guidelines
developed jointly by the Corps and EPA. Among other
things, the guidelines require the permit applicant to show that
its planned disposal of fill material minimizes environmental
impacts, to the extent practicable. The Corps may also revoke
a previously issued Section 404 permit, but only after the
Corps considers a variety of factors such as the permittee’s
investment-backed reliance on the permit.

In addition, Section 404(c) of the Clean Water Act grants
EPA concurrent authority to (i) veto the issuance of a permit
 2
or (ii) revoke a previously issued permit.1 To either veto or
revoke a permit, EPA must determine that a permittee’s
disposal of fill material at a given site “will have an
unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas.” 33 U.S.C.
§ 1344(c) (emphasis added).

In 2007, Mingo Logan obtained a Section 404 permit
from the Corps. By its terms, the permit allowed the
Company to dispose of fill material for 24 years at three
disposal sites, subject to various conditions and mitigation
measures. Understandably relying on that permit, Mingo
Logan subsequently spent millions of dollars on the mining
operation and hired coal miners and other employees.

In 2007, EPA could have exercised its Section 404(c)
authority to veto the issuance of Mingo Logan’s permit, but
EPA chose not to do so. In 2011, EPA reversed course and
exercised its Section 404(c) authority to revoke Mingo
Logan’s permit and shut down the mining operation.

EPA provided one reason for its 2011 revocation
decision: Contrary to what it had concluded four years
earlier, EPA now believed that Mingo Logan’s coal mining
operation would have an “unacceptable adverse effect” on
certain animals, particularly certain species of salamanders,
fish, and birds. (There was no stated risk to humans or to
drinking water from Mingo Logan’s disposal of fill material

1
To be precise, EPA’s authority is to prohibit specification of
disposal sites for fill material. See Mingo Logan Coal Co. v. EPA,
714 F.3d 608 (D.C. Cir. 2013). In practice, that authority is often
tantamount to authority to veto or revoke permits. For ease of
reference, I therefore will refer to EPA’s Section 404(c) authority
as a power to veto or revoke permits.
 3
into the streams.) In EPA’s view, revoking Mingo Logan’s
permit would mitigate the adverse effect on animals.

Mingo Logan complains that EPA considered only the
benefits and did not consider any of the costs associated with
revoking Mingo Logan’s permit. Those costs encompassed,
for example, the negative financial impacts on Mingo Logan’s
owners and shareholders, including those who relied on the
permit; on the coal miners who would lose their jobs; on the
collateral businesses that sold services and products for the
mining operation or otherwise depended on the mining
operation; on the consumers who pay less for electricity when
additional sources of energy are available; and on West
Virginia’s tax revenues. According to Mingo Logan, EPA
also failed to provide the “more detailed justification”
required by Supreme Court precedent when an agency
changes course and revokes a previously issued permit on
which the permittee had relied. FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009).

The bottom line is that EPA considered the benefits to
animals of revoking the permit, but EPA never considered the
costs to humans – coal miners, Mingo Logan’s shareholders,
local businesses, and the like – of revoking the permit. In my
view, EPA’s utterly one-sided analysis did not come close to
satisfying the agency’s duty under the Administrative
Procedure Act and relevant Supreme Court precedents to
consider and justify the costs of revoking Mingo Logan’s
previously issued permit.

To be clear, I am not here deciding how EPA should
weigh the costs and benefits of revoking the permit, or what
outcome the agency should reach when it conducts that
analysis. Cf. Michigan, 135 S. Ct. at 2711, slip op. at 14
(same); White Stallion Energy Center, LLC v. EPA, 748 F.3d
 4
1222, 1266 (D.C. Cir. 2014) (Kavanaugh, J., dissenting)
(same). I am merely making the narrow but critical point that
EPA must in fact consider both costs and benefits before
deciding whether to revoke the permit. See Michigan, 135 S.
Ct. 2699. EPA did not do so here. Under the Administrative
Procedure Act and applicable Supreme Court precedent, that
is not acceptable. I respectfully dissent.

I

By omitting consideration of costs, EPA’s decision
revoking Mingo Logan’s permit was doubly deficient under
the Administrative Procedure Act. First, EPA failed its most
basic duty under the Administrative Procedure Act to consider
all of the relevant factors, including costs. Second, because
EPA changed its position by revoking a previously issued
permit, EPA not only had to consider costs, but also had to
provide a more detailed justification for its change in position.

A

It is a fundamental principle of administrative law that
federal “administrative agencies are required to engage in
reasoned decisionmaking.” Michigan v. EPA, 135 S. Ct.
2699, 2706, slip op. at 5 (2015) (internal quotation marks
omitted). To engage in reasoned decisionmaking, an agency
must consider all of the factors that are relevant to the
particular decision facing the agency. Id. In other words, an
agency must consider each “important aspect of the problem.”
Motor Vehicle Manufacturers Association of the United States
v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29,
43 (1983). An agency must also articulate a “rational
connection” between the factors considered and the choice
made. Id. In short, agency action must be “reasonable and
reasonably explained.” Communities for a Better
Environment v. EPA, 748 F.3d 333, 335 (D.C. Cir. 2014).
 5
As a general rule, the costs of an agency’s action are a
relevant factor that the agency must consider before deciding
whether to act. See Michigan, 135 S. Ct. at 2707, slip op. at
7. In Michigan v. EPA, the Supreme Court was unanimous in
articulating this principle. The Court divided 5-4 only on
whether the agency had in fact considered costs. Id. at 2714,
slip op. at 2-3 (Kagan, J., dissenting) (“I agree with the
majority – let there be no doubt about this – that EPA’s power
plant regulation would be unreasonable if the Agency gave
cost no thought at all.”) (internal quotation marks and
brackets omitted).

An agency must consider costs because reasoned
decisionmaking requires assessing whether a proposed action
would do more good than harm. As the Supreme Court has
emphasized, the costs imposed by the agency’s action are an
integral part of that calculus: “Consideration of cost reflects
the understanding that reasonable regulation ordinarily
requires paying attention to the advantages and the
disadvantages of agency decisions.” Id. at 2707, slip op. at 7
(majority opinion).

Leading jurists and scholars have long recognized that
consideration of costs is an essential component of reasoned
decisionmaking under the Administrative Procedure Act.
Consider the following:

 Justice Kagan: “[W]hat does it take in a statute
to make us say, look, Congress has demanded
that the regulation here occur without any
attention to costs? In other words, essentially
Congress has demanded that the regulation has
occurred in a fundamentally silly way.” Tr. of
Oral Arg. at 13, EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014).
 6
 Justice Breyer: “[I]t would make no sense to
require [power] plants to spend billions to save
one more fish or plankton. That is so even if the
industry might somehow afford those billions.”
Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208,
232-33 (2009) (opinion of Breyer, J.) (internal
quotation marks and citation omitted).
 Justice Breyer: Every agency choice “requires a
decisionmaker to weigh advantages against
disadvantages, and disadvantages can be seen in
terms of (often quantifiable) costs.” Id. at 232.
 Professor Sunstein: “A rational system of
regulation looks not at the magnitude of the risk
alone, but assesses the risk in comparison to the
costs.” Cass R. Sunstein, Interpreting Statutes in
the Regulatory State, 103 HARV. L. REV. 405,
493 (1989).
 Professor Pierce: “All individuals and
institutions naturally and instinctively consider
costs in making any important decision. . . . [I]t is
often impossible for a regulatory agency to make
a rational decision without considering costs in
some way.” Richard J. Pierce, Jr., The
Appropriate Role of Costs in Environmental
Regulation, 54 ADMIN. L. REV. 1237, 1247
(2002).

To be sure, Congress may bar an agency from
considering the costs of certain actions. See Whitman v.
American Trucking Associations, 531 U.S. 457, 464-71
(2001). But absent a congressional directive to disregard
costs, common administrative practice and common sense
require an agency to consider the costs and benefits of its
proposed actions, and to reasonably decide and explain
whether the benefits outweigh the costs.
 7
In this case, instead of considering the costs and benefits
of revoking Mingo Logan’s permit, EPA focused like a laser
on one benefit that would flow from the revocation – namely,
the prevention of an adverse effect on a few animals, such as
salamanders, fish, and birds in and near the disposal sites.
(To reiterate, there was no stated risk to humans or to drinking
water from Mingo Logan’s disposal of fill material into the
streams.)

But EPA ignored the costs to humans caused by the
revocation of Mingo Logan’s permit, such as the harm to
Mingo Logan’s owners and shareholders and to the coal
miners who had been or would be employed at the mine. By
ignoring costs, EPA in essence discounted the costs to
humans all the way to zero. That’s how EPA was able to
conclude that the harm to some salamanders, fish, and birds
from the mining operation outweighed the loss of jobs for
hundreds of coal miners, the financial harm to Mingo Logan’s
owners and shareholders, and the many other costs from
revoking the permit.

EPA ignored the costs to humans because, in EPA’s
view, Congress prohibited the agency from considering costs
under Section 404(c). Section 404(c), to repeat, authorizes
EPA to prohibit the disposal of fill material into any disposal
site if EPA determines that the disposal “will have an
unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas.” 33 U.S.C.
§ 1344(c) (emphasis added).

According to EPA, the phrase “unacceptable adverse
effect” bars EPA from considering costs, or may be
reasonably construed to allow EPA to ignore costs. But EPA
is badly mistaken. Far from prohibiting EPA from
 8
considering the costs of its actions, Section 404(c) reinforces
the agency’s bedrock duty under the Administrative
Procedure Act to consider costs.

The word “unacceptable” is capacious and necessarily
encompasses consideration of costs. Like the word
“appropriate” at issue in Michigan v. EPA, the words
“acceptable” and “unacceptable” are commonly understood to
necessitate a balancing of costs and benefits. See Michigan,
135 S. Ct. at 2707-08, slip op. at 6-8; cf. Turner v. Murray,
476 U.S. 28, 36 (1986) (“[W]e find the risk that racial
prejudice may have infected petitioner’s capital sentencing
unacceptable in light of the ease with which that risk could
have been minimized.”).

To illustrate, suppose that the disposal of fill material
from a surface mining project is certain to harm some
salamanders. Does the disposal activity have an
“unacceptable adverse effect” on salamanders? The answer
would presumably be yes if the disposal activity could be
prohibited at zero cost – say, if the fill material could just as
easily be dumped at another site devoid of salamanders. On
the other hand, the answer would presumably be no if the
mining project would contribute millions of dollars to the
local economy and lower the price of electricity. In some
cases, the question of whether the adverse effect on
salamanders is “unacceptable” may be a close call. But the
point for present purposes is that the balance of the benefits of
reducing the adverse effect on animals and the costs of
shutting down the mining operation plainly influences the
determination whether or not the adverse effect is
“unacceptable.”

Indeed, consider an analogous phrase recently analyzed
by the Supreme Court: undue burden. See Whole Woman’s
 9
Health v. Hellerstedt, __ U.S. __ (June 27, 2016). The
Supreme Court explained that in assessing whether a law
constitutes an “undue burden” on abortion access, courts must
“consider the burdens a law imposes on abortion access
together with the benefits those laws confer.” Id. at __, slip
op. at 19-20. If the word “undue” at issue in Whole Woman’s
Health requires a balancing of costs and benefits, the word
“unacceptable” at issue here similarly requires a balancing of
costs and benefits.

Moreover, even if the word “unacceptable” does not
unambiguously require EPA to consider costs, it certainly
allows EPA to consider costs. Cf. Michigan v. EPA, 213 F.3d
663, 674-79 (D.C. Cir. 2000) (per curiam) (statutory term
“significant” allowed EPA to consider costs). And if the
word “unacceptable” allows EPA to consider costs, it is
necessarily unreasonable for EPA not to consider costs. See
Michigan, 135 S. Ct. at 2706-08, slip op. at 5-9. That
proposition follows from the general reasonableness principle
embodied in State Farm and Chevron: To act reasonably, an
agency must consider the costs of its actions unless Congress
has barred consideration of costs.

So whether EPA’s interpretation of Section 404(c) is
analyzed under Chevron step one or Chevron step two or
State Farm, the conclusion is the same: In order to act
reasonably, EPA must consider costs before exercising its
Section 404(c) authority to veto or revoke a permit.

EPA responds that Section 404(c) is more akin to the
statutory provision at issue in Whitman v. American Trucking
than the provision at issue in the Supreme Court’s Michigan
v. EPA case. Whitman dealt with a provision of the Clean Air
Act that directed EPA to set ambient air quality standards at
levels “requisite to protect the public health” with “an
 10
adequate margin of safety.” 42 U.S.C. § 7409(b)(1). The
Court said that the statute precluded EPA from considering
costs.

EPA advanced the same Whitman-based argument in
Michigan v. EPA. It failed. Here too, EPA’s reliance on
Whitman is misplaced. In Whitman, the Court explained that
the statute specifically focused on “public health” and
“safety” – two factors on the other side of the balance from
costs. See Whitman, 531 U.S. at 468-69. The Court found it
“implausible” that Congress – through the modest words
“requisite” and “adequate margin” – granted EPA the
significant power “to determine whether implementation costs
should moderate national air quality standards.” Whitman,
531 U.S. at 468.

Here, by contrast, Section 404(c)’s text – in particular the
word “unacceptable” – contemplates that costs must be
considered. So does the statutory context and purpose: After
all, it would be surprising – shocking, truth be told – if EPA
did not have to consider costs under Section 404(c) when
deciding whether to veto or revoke permits.

In short, bedrock principles of administrative law, as well
as the terms of the statute setting forth EPA’s substantive
authority to revoke permits, required EPA to consider the
costs of revoking Mingo Logan’s permit. By failing to do so,
EPA ignored “an important aspect of the problem.” State
Farm, 463 U.S. at 43.

B

In this case, moreover, EPA’s failure to consider costs
was doubly problematic because EPA changed its position in
2011 by revoking a permit previously issued in 2007. It
would be bad enough if EPA had merely blocked issuance of
 11
a Section 404 permit without considering costs. But it is far
worse that here, EPA changed course and revoked a
previously issued permit without considering costs, including
the costs of reliance on the permit.

As a general rule, when an agency changes an existing
policy or changes its position on an issue, the agency “need
not demonstrate to a court’s satisfaction that the reasons for
the new policy are better than the reasons for the old one.”
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009). The agency must show only that there are “good
reasons” for the new policy or position. Id.

But the Supreme Court has carefully articulated an
exception to that general principle: An agency must provide a
“more detailed justification” for a change in position if the
agency’s prior position “engendered serious reliance
interests.” Id.; see also Smiley v. Citibank (South Dakota),
N.A., 517 U.S. 735, 742 (1996). “In such cases it is not that
further justification is demanded by the mere fact of policy
change; but that a reasoned explanation is needed for
disregarding facts and circumstances that underlay or were
engendered by the prior policy.” Fox, 556 U.S. at 515-16.

The Supreme Court’s recent decision in Encino
Motorcars, LLC v. Navarro, __ U.S. __ (June 20, 2016),
illustrates the point. In that case, the Department of Labor
changed its longstanding interpretation of the Fair Labor
Standards Act. The retail car and truck dealership industry
had long relied on the Department’s prior interpretation.
When justifying its change in position, the Department
nonetheless failed to consider the industry’s reliance. Id. at
__, slip op. at 2-6, 10. The Supreme Court found the
Department’s change in course problematic. The Court said
that, in light of the industry reliance on the Department’s prior
 12
position, “the Department needed a more reasoned
explanation for its decision to depart” from its prior
interpretation of the Fair Labor Standards Act. Id. at __, slip
op. at 10-11.

The Supreme Court requires a “more reasoned” or “more
detailed” justification in those circumstances because an
agency change that undermines serious reliance interests
disrupts settled expectations, thereby imposing a significant
cost on regulated parties and contravening basic notions of
due process and fundamental fairness. Here, as elsewhere, the
law seeks to protect those kinds of settled expectations. Cf.
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994)
(“settled expectations should not be lightly disrupted”); Hilton
v. South Carolina Public Railways Commission, 502 U.S.
197, 202 (1991) (“Stare decisis has added force when the
legislature, in the public sphere, and citizens, in the private
realm, have acted in reliance on a previous decision, for in
this instance overruling the decision would dislodge settled
rights and expectations . . . .”).

Put another way, when an agency changes position in a
way that frustrates reliance interests, the agency’s action is
more costly to regulated parties than when the agency
develops a policy or announces a decision on a clean slate, all
else being equal. This is a commonplace phenomenon in law
and life. To take one example, declining to hire someone is
usually less disruptive to the individual than firing someone.
In the administrative context, the presence of that extra cost –
the reliance cost – triggers a heightened burden of agency
justification: The agency must consider the reliance cost and
must justify its action despite that additional cost.

To be sure, as Justice Ginsburg pointed out in her
concurring opinion in Encino Motorcars, the presence of
 13
reliance interests does not “pose an insurmountable obstacle”
to an agency’s desired change in course. Encino Motorcars,
__ U.S. at __, slip op. at 2 n.2 (Ginsburg, J., concurring). But
reliance does pose an obstacle. And the agency must take that
obstacle into account. As Justice Ginsburg put it, the agency
must determine that “the benefits of [its desired action]
outweigh those costs.” Id. at __, slip op. at 2.

Reliance interests pose an especially formidable obstacle
to an agency’s desired change in course in the context of
government-issued permitting. A government-issued permit
typically embodies a limited-time bargain between a private
party and the relevant government agency. If the private
party complies with the permit’s conditions, the government
will allow the party to engage in certain conduct – whether
driving a truck, building a new store, or disposing of fill
material, for example – for a specified period of time.
Therefore, the issuance of a permit is typically intended to,
and typically does, engender reliance by the permittee: The
permit induces the driver to buy a truck, the builder to start
construction, the miner to invest in its operation.

When a permit induces reliance, it has long been
recognized that those settled expectations should not be
lightly disturbed by intervening government action. See, e.g.,
Dainese v. Cooke, 91 U.S. 580, 583-84 (1875) (The
government “should make a clear case of departure from the
permit, or danger to public interests, before appellant should
be arrested midway in the construction of the buildings, and
have them summarily torn down, with all the necessary loss
and expense to him of such a course.”). For example, under
the state common law doctrines of “vested rights” and
“equitable estoppel,” state agencies are often precluded from
nullifying investments made in reasonable reliance on a valid
building or development permit. See 2 E. C. Yokley, Zoning
 14
Law and Practice § 14-5 (4th ed. 2009); see also, e.g., Avco
Community Developers, Inc. v. South Coast Regional
Commission, 553 P.2d 546, 550 (Cal. 1976) (“It has long been
the rule in this state and in other jurisdictions that if a property
owner has performed substantial work and incurred
substantial liabilities in good faith reliance upon a permit
issued by the government, he acquires a vested right to
complete construction in accordance with the terms of the
permit.”).

Here, the Section 404 permit afforded Mingo Logan 24
years to engage in an activity that was essential to the
economic viability of its coal mining operation. After
obtaining its permit in 2007, Mingo Logan spent millions of
dollars preparing the site for mining operations. Mingo
Logan’s large expenditures easily qualify as “serious
reliance” upon the permit. Fox, 556 U.S. at 515. And those
investments have been rendered all but worthless by EPA’s
2011 decision to revoke the permit.

Under Fox, because EPA’s change affected “serious
reliance interests,” EPA needed to provide a “more detailed
justification” for its revocation of Mingo Logan’s permit. Id.
And because EPA was revoking a Section 404 permit, EPA’s
more detailed justification needed to explain why the benefits
of revoking Mingo Logan’s permit outweighed all of the
relevant costs, including the significant cost of frustrating
Mingo Logan’s investment-backed reliance on a government-
issued permit. As already discussed, however, EPA did not
even acknowledge the costs of revoking Mingo Logan’s
permit, much less provide the more detailed justification for
revoking the permit that is required by Fox.2

2
To be clear, even if an agency were not required to consider
costs in making an initial decision, Fox would require the agency to
 15
II

To sum up: An agency must consider both costs and
benefits of a proposed agency action unless Congress has
barred consideration of costs. When an agency changes
course by revoking a permit, one cost is the frustration of
reliance interests. When reliance interests are frustrated in
that way, the agency must not only consider that cost but must
also provide a “more detailed justification” for its action
revoking the permit. FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009). That more detailed justification
must consider all of the relevant costs, including the
frustration of reliance interests. In this case, EPA utterly
failed to meet those basic Administrative Procedure Act
requirements.

How does the majority opinion deal with EPA’s failure to
consider costs? The majority opinion does not address the
issue. Rather, the majority opinion concludes that Mingo
Logan forfeited the argument that EPA had to consider and
justify the costs of revoking the permit. I disagree.

To preserve an issue, a party challenging an agency
action arising in an administrative adjudication such as this
ordinarily must raise the issue before the agency and, if
applicable, before the district court. See Shea v. Kerry, 796
F.3d 42, 56 (D.C. Cir. 2015); Advocates for Highway & Auto
Safety v. Federal Motor Carrier Safety Administration, 429
F.3d 1136, 1148 (D.C. Cir. 2005). The majority opinion says
that Mingo Logan failed to raise its argument about the costs
of revocation before EPA and again before the district court.
But in my view, Mingo Logan raised its costs argument in
both proceedings.

consider reliance costs (if any) if and when the agency later
changed course.
 16
First, during the EPA proceeding, Mingo Logan
informed EPA that the agency should consider the costs of the
proposed permit revocation, not just the benefits. In its
written comments to EPA, Mingo Logan argued that Section
404(c) of the Clean Water Act requires EPA to consider all
the costs of revoking a permit: “‘Unacceptable,’ like
‘significant,’ is a relative term that must be weighed against
the endangerment of the species, the size of the project, and
any economic benefit from the project.” Mingo Logan,
Comments in Response and in Opposition to the
Recommended Determination of the U.S. Environmental
Protection Agency Region III 6 n.11 (Nov. 29, 2010)
(emphasis added), at Joint Appendix 712.

Indeed, it is self-evident that Mingo Logan raised a costs
argument because EPA itself responded to Mingo Logan’s
costs argument, stating: “[Mingo Logan’s] contention that the
word ‘unacceptable’ ‘must be weighed against the
endangerment of the species, the size of the project, and any
economic benefit from the project’ is without merit.” EPA,
Final Determination of the U.S. Environmental Protection
Agency Pursuant to § 404(c) of the Clean Water Act
Concerning the Spruce No. 1 Mine, Logan County, West
Virginia app. 6 (Jan. 13, 2011) (hereinafter EPA Final
Determination), at Joint Appendix 955.

Moreover, Mingo Logan specifically informed EPA of
the costs it had incurred – namely, the significant investments
that the Company had made in reliance on the permit: “After
receiving its Section 404 permit, Mingo Logan spent millions
of dollars preparing the Spruce No. 1 site and commencing its
operations.” Mingo Logan, Comments in Response and in
Opposition to the Proposed Determination 33 (June 3, 2010),
at Joint Appendix 403. Mingo Logan added: “Now, more
than three years after the issuance of the permit, as Mingo
 17
Logan is actively mining the site in an attempt to recoup its
decade-long investment, EPA has declared that the impacts
that it had approved are now unacceptable, and seeks to
revoke the permit.” Mingo Logan, Comments in Response
and in Opposition to the Recommended Determination of the
U.S. Environmental Protection Agency Region III 2 (Nov. 29,
2010), at Joint Appendix 708.

Mingo Logan explained, in addition, that EPA must
provide a more detailed justification for revoking a Section
404 permit: Mingo Logan stressed that while “the 404(c)
standard pre-permit is high; the standard post-permit is even
higher.” Mingo Logan, Comments in Response and in
Opposition to the Recommended Determination of the U.S.
Environmental Protection Agency Region III 8 (Nov. 29,
2010), at Joint Appendix 714.

Taken together, Mingo Logan’s allegations were “made
with sufficient specificity reasonably to alert” EPA that it had
to consider and justify the costs of revoking the permit.
Appalachian Power Co. v. EPA, 251 F.3d 1026, 1036 (D.C.
Cir. 2001).

Second, before the District Court, Mingo Logan
continued to press the same claim that it had made before
EPA. Mingo Logan again discussed the “millions of dollars”
the Company had spent preparing the mining site for
operations. Amended Complaint at 19, Mingo Logan Coal
Co. v. EPA, No. 10-541 (D.D.C. Feb. 28, 2011), at Joint
Appendix 68. And Mingo Logan maintained that “long-
settled legal principles” required EPA “to explain a change in
course” in order to account for the “investment-chilling
prospect of post-permit action.” Supplemental Brief in
Support of Mingo Logan’s Motion for Summary Judgment
and in Opposition to EPA’s Motion for Summary Judgment at
 18
9, Mingo Logan Coal Co. v. EPA, No. 10-541 (D.D.C. May
28, 2014). Mingo Logan continued to press that point in a
hearing before the District Court: “[I]t is a fundamental
precept of administrative law that an agency can’t just change
its mind without any reason. We’ve cited several cases in our
brief. There’s the [State Farm] case, the [Jicarilla] case, that
if an agency changes its position it has to articulate a reason
for the change. That’s a fundamental precept of
administrative law for any change.” Tr. of Motion Hearing at
9, Mingo Logan Coal Co. v. EPA, No. 10-541 (D.D.C. July
30, 2014). Mingo Logan therefore raised its costs argument
before the District Court.

Put simply, Mingo Logan made both a State Farm
argument and a Fox argument. The State Farm argument was
that EPA had to consider all of the relevant factors, one of
which was costs. The Fox argument was that the agency had
to provide a more detailed justification because it was
changing course and revoking a previously issued permit. As
a matter of common sense and settled law, those arguments
required EPA to consider not just the benefits of revoking the
permit, but also the costs. How else could EPA perform its
duty under State Farm and Fox without considering the
downside costs as well as the upside benefits of revoking the
permit? See Michigan v. EPA, 135 S. Ct. 2699, 2707, slip op.
at 7 (2015) (“Consideration of cost reflects the understanding
that reasonable regulation ordinarily requires paying attention
to the advantages and the disadvantages of agency
decisions.”).

The majority opinion concludes that Mingo Logan
forfeited its costs argument for two distinct reasons.

First, the majority opinion says that Mingo Logan failed
to make a costs argument at all. But the majority opinion
 19
acknowledges, as it must, that Mingo Logan preserved the
argument that “EPA is subject to a heightened standard to
justify its withdrawal decision.” Maj. Op. at 22. The majority
opinion nonetheless says that “Mingo Logan’s post-permit
heightened-standard claim does not preserve its reliance-costs
claim.” Id. at 23.

That makes little sense to me. Those are one and the
same argument. After all, EPA must provide a more detailed
justification post-permit, as the Supreme Court has carefully
explained many times, precisely because a revocation (that is,
a change in position) frustrates reliance interests. See Fox,
556 U.S. at 515. So when Mingo Logan argued that EPA had
to provide a more detailed justification for its revocation
decision – an argument that the majority concedes Mingo
Logan has preserved – Mingo Logan necessarily made the
lesser-included argument that EPA had to consider costs.
Again, the agency could not perform its duty under State
Farm or Fox without considering costs.

To illustrate the point, assume that when EPA decided
not to veto the permit, EPA believed that the loss of one coal
miner’s future job was a tolerable cost so long as two
salamanders were saved. Once the permit was issued, the
coal miner was hired and investments were made in the
mining operation. So when EPA decided to revoke the
permit, EPA had to explain how its calculus changed given
that its revocation decision would cause the loss of existing
jobs – not just hypothetical future ones – and existing
investments. That’s what providing a “more detailed
justification” entails in this context. Fox, 556 U.S. at 515.
EPA could not rationally provide a more detailed justification
in this case without considering costs. Therefore, Mingo
Logan necessarily made a costs argument when it asked EPA
 20
to provide a more detailed justification for its revocation
decision.

Second and alternatively, the majority opinion suggests
that even if Mingo Logan did raise an argument about costs,
Mingo Logan “failed to detail” its reliance costs. Maj. Op. at
21. In the end, this seems to be the crux of the majority
opinion’s objection. To begin with, even on its own terms,
that objection fails. Mingo Logan told the agency that it had
spent “millions of dollars” in reliance on the permit. That is
at least $2 million. Moreover, EPA knew that the costs of
revocation to Mingo Logan were significant. After all, in its
decision revoking the permit, EPA itself “recognize[d] that
Mingo Logan has made significant investments in planning
for operations at the Spruce No. 1 Mine.” EPA Final
Determination at app. 6, at Joint Appendix 1236. At that
time, EPA further noted that the “Spruce No. 1 Mine . . . is
one of the largest mountaintop mining projects ever
authorized in West Virginia.” Id. at 15, at Joint Appendix
806. EPA should have weighed the costs of revocation in the
balance. It did not do so.

There is also a far more fundamental problem with the
majority opinion’s argument that Mingo Logan failed to detail
its costs. EPA’s legal theory throughout these proceedings
has been that costs are irrelevant to permit revocation
decisions. Yet now EPA is faulting Mingo Logan for not
adequately detailing its costs to the agency. That’s a bit rich.
It is not as if EPA said it would consider costs and then
Mingo Logan failed to present evidence. Rather, as reflected
in its decision revoking the permit, EPA made clear that costs
were irrelevant and said it would make its decision based
solely on the adverse effect on animals. See id. at app. 6, at
Joint Appendix 955. It flatly violates SEC v. Chenery for
EPA now to rely on Mingo Logan’s supposed failure to detail
 21
its costs when EPA (over Mingo Logan’s objection) said at
the agency stage and in the District Court that costs were
irrelevant. See SEC v. Chenery Corp., 318 U.S. 80 (1943);
SEC v. Chenery Corp., 332 U.S. 194 (1947). The forfeiture
argument advanced by EPA (and accepted by the majority
opinion) about Mingo Logan’s supposed failure to detail costs
is entirely unfair to Mingo Logan. I would not countenance
this kind of agency bait and switch.

To be clear, the question whether Mingo Logan failed to
adequately detail its costs is distinct from the question
whether, in the first place, Mingo Logan sufficiently raised an
argument that EPA needed to consider costs. Mingo Logan
clearly raised a costs argument as part of its State Farm/Fox
argument. If EPA thought that Mingo Logan failed to
adequately support its costs estimate as an evidentiary matter,
perhaps that could have been a basis for EPA to conclude that
the benefits of revocation outweighed the apparent costs of
revoking the permit. But EPA never said any such thing.
EPA did not engage in cost-benefit balancing at all. EPA said
costs were irrelevant.

In short, Mingo Logan argued to both EPA and the
District Court that EPA had to consider all of the relevant
factors (State Farm) and provide a more detailed justification
because it was changing position and revoking a permit on
which Mingo Logan had relied (Fox). Mingo Logan
preserved the argument that EPA had to consider costs,
including reliance costs.

***

The Corps issued a 24-year permit to Mingo Logan, but
EPA then revoked the permit four years later. In revoking the
permit, EPA considered the benefits to animals, but none of
the costs to humans. Because that cost-blind approach does
 22
not satisfy EPA’s duty of reasoned decisionmaking, and
because Mingo Logan adequately raised that issue, I would
direct the District Court to vacate EPA’s revocation decision
and to remand to EPA for the agency to consider the benefits
and costs of its proposed revocation, and to supply a “more
detailed justification” for revoking the permit. Fox, 556 U.S.
at 515. I respectfully dissent.