United States Court of Appeals
For the First Circuit
No. 04-1513
STATE OF RHODE ISLAND,
Petitioner, Appellant,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
UNITED STATES ENVIRONMENTAL APPEALS BOARD,
Respondents, Appellees.
PETITION FOR REVIEW OF AN ORDER
OF THE UNITED STATES ENVIRONMENTAL APPEALS BOARD
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Tricia K. Jedele, Special Assistant Attorney General, with
whom Brian A. Wagner, Deputy Legal Counsel, Rhode Island Department
of Environmental Management, was on brief, for appellant.
Michael B. Heister, Attorney, Environment and Natural
Resources Division, with whom Thomas L. Sansonetti, Assistant
Attorney General, Environment and Natural Resources Division, John
C. Cruden, Deputy Assistant Attorney General, and Susmita Dubey,
Office of the General Counsel, United States Environmental
Protection Agency, were on brief, for appellees.
Wendy B. Jacobs, John M. Stevens, Randall Kromm, and Foley
Hoag LLP on brief for USGen New England, Inc., amicus curiae.
August 3, 2004
SELYA, Circuit Judge. The state of Rhode Island seeks
interlocutory review of a decision by the Environmental Appeals
Board (the EAB) denying its motion to intervene in a pollution-
discharge permit proceeding. The case presents a threshold
question about the availability of judicial review with respect to
such interlocutory administrative determinations. We hold, as a
matter of first impression in this circuit, that the collateral
order doctrine applies to agency determinations. Here, however,
the order appealed from does not fit within the parameters of that
doctrine: the EAB proceedings are ongoing, and Rhode Island's
challenge to the intervention decision can (and should) be
adjudicated at the conclusion of the administrative proceedings.
Consequently, we dismiss the appeal for want of appellate
jurisdiction.
I. THE STATUTORY FRAMEWORK
The principal purpose of the Clean Water Act (the CWA) is
to "restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." 33 U.S.C. § 1251(a); see also
Adams v. EPA, 38 F.3d 43, 47 (1st Cir. 1994). One of the ways in
which the CWA seeks to achieve this purpose is by authorizing a
national pollution discharge elimination system (NPDES). Under
this regime, persons contemplating the discharge of pollutants into
United States waters must obtain NPDES permits before doing so.
See 33 U.S.C. §§ 1311(a), 1342; see also P.R. Aqueduct & Sewer
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Auth. v. EPA, 35 F.3d 600, 601 (1st Cir. 1994). Such permits
govern, inter alia, the quantity and concentration of discharged
pollutants as well as the rate of discharge. See Arkansas v.
Oklahoma, 503 U.S. 91, 101-02 (1992) (citing pertinent statutory
and regulatory provisions).
NPDES permits may be issued either by the Environmental
Protection Agency (the EPA) or, in those states authorized to
administer their own NPDES programs, by a state agency (subject,
however, to EPA review). 33 U.S.C. § 1342. Since Massachusetts is
not a specially authorized state, we focus here on the EPA's
permitting procedures.
Once the EPA receives a permit application, its regional
administrator typically prepares a draft permit, invites comment,
and initiates a public hearing. 40 C.F.R. §§ 124.6, 124.10,
124.12. At the end of this process, the regional administrator
hands down a decision denying or granting the permit. Id. §
124.15. A granted permit ordinarily will carry conditions, which
may be of varying scope and severity. 33 U.S.C. § 1342(a). Any
person who has participated during the comment period may, within
thirty days, petition the EAB for review of the EPA's decision
(including review of the permit conditions). 40 C.F.R. §
124.19(a). That review is discretionary. Id. Should the EAB deny
review, the EPA-endorsed permit becomes administratively final.
Id. § 124.19(c).
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If, however, the EAB elects to afford review, it gives
public notice to that effect. Id. It then sets a briefing
schedule and invites interested persons to participate as amici
(i.e., "friends" of the Board). Id. Only after an EAB
determination on the merits is the regional administrator
authorized to issue a final permit. Id. § 124.19(f)(1). Any
interested person can then petition for judicial review of the
EAB's actions (or any aspect thereof) in the appropriate circuit
court of appeals. 33 U.S.C. § 1369(b)(1)(F).
II. FACTUAL AND PROCEDURAL BACKGROUND
This case involves the Brayton Point power plant,
operated by USGen New England, Inc. (USGen) in Somerset,
Massachusetts. The plant sits on the shores of Mount Hope Bay, a
body of water lying partly within Rhode Island's borders. Heat is
a pollutant for CWA purposes, id. § 1362(6), and the plant's
cooling system discharges water into the bay at elevated
temperatures. According to the EPA, discharges of heated water
from the plant have detrimentally affected the bay's fish
population.
The NPDES permit for Brayton Point expired in 1998.
USGen applied for a renewed permit and, throughout the pendency of
the permitting procedures, the EPA undertook to address concerns
about the plant's discharge protocol. A draft permit was issued in
2002. Rhode Island played an active role during the comment
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period. On October 6, 2003, the EPA's regional administrator for
Region I handed down a proposed final NPDES permit for Brayton
Point's discharge system. The permit contained a series of new,
more stringent conditions. USGen filed a petition for
administrative review and requested an evidentiary hearing. Rhode
Island moved for leave to intervene in order to support the
proposed permit or, alternatively, for permission to participate as
an amicus.
The EAB responded by issuing a multi-part order. In re
USGen New Engl., Inc. Brayton Point Station, NPDES Appeal No. 03-
12, slip op. (Envtl. App. Bd. Feb. 19, 2004), available at
http://www.epa.gov/eab/orders/usgen.pdf. The order granted USGen's
petition for review, reserved decision on whether to hold an
evidentiary hearing, denied Rhode Island's motion to intervene
without prejudice (with the proviso that the motion could be
renewed in the event that the EAB subsequently decided to convene
an evidentiary hearing), granted Rhode Island amicus status, and
set a briefing schedule.
Rhode Island took an immediate appeal from the
conditional denial of its motion to intervene. We expedited review
and heard oral arguments on June 7, 2004. We now conclude that we
lack jurisdiction over Rhode Island's interlocutory appeal.
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III. APPELLATE JURISDICTION
Federal courts are courts of limited jurisdiction. Am.
Fiber & Finishing, Inc. v. Tyco Healthcare Group, 362 F.3d 136, 138
(1st Cir. 2004). Thus, they can hear cases only if and to the
extent that they are authorized to do so by statute. Bell v. New
Jersey, 461 U.S. 773, 777 (1983). With this in mind, we inspect
the hooks on which Rhode Island tries to hang our jurisdiction.
A. Section 1369(b)(1)(F).
Rhode Island's first response is to identify 33 U.S.C. §
1369(b)(1)(F) as the basis for appellate jurisdiction in this case.
This is a very frail hook. The statute provides:
Review of the Administrator's action . . . in
issuing or denying any permit under section
1342 of this title . . . may be had by any
interested person in the [appropriate] Circuit
Court of Appeals of the United States . . .
upon application by such person. Any such
application shall be made within 120 days from
the date of such . . . issuance or denial . .
. .
33 U.S.C. § 1369(b)(1)(F). By its plain terms, this provision
conditions the availability of judicial review on the issuance or
denial of a permit. In addition, the case law has construed the
provision in that manner. See, e.g., Appalachian Energy Group v.
EPA, 33 F.3d 319, 322 (4th Cir. 1999); City of Ames v. Reilly, 986
F.2d 253, 256 (8th Cir. 1993).
Given the statutory and regulatory scheme, this
construction defeats Rhode Island's first jurisdictional claim.
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Where a petition for administrative review has been timely filed,
the regional administrator issues or withholds a permit only at the
conclusion of the EAB review process. 40 C.F.R. § 124.19(f)(1).
This means that where EAB proceedings are ongoing — as they are
here — there has not as yet been an issuance or denial of a permit
sufficient to support the invocation of circuit court jurisdiction
under section 1369(b)(1)(F).
This reading of section 1369(b)(1)(F) comports with the
"strong presumption" that "judicial review [of an agency decision]
will be available only when agency action becomes final." Bell,
461 U.S. at 778. Agency action is considered final when it
represents the culmination of the agency's decisionmaking process
and conclusively determines the rights and obligations of the
parties with respect to the matters at issue. Bennett v. Spear,
520 U.S. 154, 178 (1997). Here, that point will not be reached
until the completion of proceedings before the EAB. Only then will
a final NPDES permit issue, concluding the EPA's decisionmaking
process and imposing real-world obligations. See 40 C.F.R. §
124.19(f)(1) (stating that, for purposes of judicial review, "final
agency action occurs when a final . . . NPDES . . . permit decision
is issued by EPA and agency review procedures under this section
are exhausted").
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B. The Collateral Order Doctrine.
Rhode Island has a fallback position. Despite the
absence of final agency action in the traditional sense, Rhode
Island suggests that the EAB's order denying intervention is
amenable to immediate review under the so-called collateral order
doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949) (describing a "small class" of orders that do not end
the proceedings below but should, for systemic reasons, be treated
as final and immediately appealable). This suggestion warrants
serious consideration.
We begin by stepping backward in time. The collateral
order doctrine was developed as a safety valve to provide a modicum
of relief from overly strict application of the requirement that
appellate courts review only final decisions of district courts.
See 28 U.S.C. § 1291 ("The courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district
courts of the United States . . . ."); see also Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) ("The
collateral order doctrine is best understood not as an exception to
the final decision rule laid down by Congress in § 1291, but as a
practical construction of it.") (excess punctuation omitted).
There remains some question whether the doctrine applies at all in
the administrative context, that is, whether an aggrieved party can
invoke the doctrine to obtain immediate appellate review of a
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collateral order that impacts, but does not end, an administrative
proceeding. See Augusta Bakery Corp. v. NLRB, 846 F.2d 445, 446-47
(7th Cir. 1988) (reserving the question); see also R.I. Dep't of
Envtl. Mgmt. v. United States, 304 F.3d 31, 44 (1st Cir. 2002)
(speculating that interlocutory review might be available for some
non-final administrative orders "based on an analogy to the
collateral order doctrine"). Today, we answer that question
affirmatively and hold that the collateral order doctrine does have
vitality with respect to judicial review of agency determinations.
We ground this holding on three lines of reasoning.
First and foremost, the Supreme Court has strongly
signaled, in a trilogy of cases, that Cohen's rationale carries
over to administrative determinations. In Mathews v. Eldridge, 424
U.S. 319 (1976), the Court concluded that an agency order
constituted a "final decision by the Secretary" for purposes of
judicial review. Id. at 328. Pertinently, Justice Powell wrote:
[T]he nature of the claim being asserted and
the consequences of deferment of judicial
review are important factors in determining
whether a statutory requirement of finality
has been satisfied. The role these factors
may play is illustrated by the intensely
"practical" approach which the Court has
adopted, Cohen v. Beneficial Ind. Loan Corp.,
. . . when applying the finality requirements
of 28 U.S.C. § 1291 . . . . To be sure,
certain of the policy considerations
implicated in . . . [§] 1291 cases are
different from those that are relevant here.
But the core principle that statutorily
created finality requirements should, if
possible, be construed so as not to cause
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crucial collateral claims to be lost and
potentially irreparable injuries to be
suffered remains applicable.
Id. at 331 n. 11 (citations omitted).
In a subsequent case, the Supreme Court, albeit with only
meager discussion, actually applied the collateral order doctrine
to determine the reviewability of an agency order. See FTC v.
Standard Oil Co., 449 U.S. 232, 246 (1980) (concluding that the
order in question was not immediately reviewable). The Court
reinforced the thought that the collateral order doctrine was
administratively available in Bell, 461 U.S. at 778-79, in which it
intimated that the presence of an appealable collateral order might
allow a federal court to exercise jurisdiction over an otherwise
non-final agency determination. We agree with Judge Ginsburg, see
DRG Funding Corp. v. Sec'y of HUD, 76 F.3d 1212, 1220-21 (D.C. Cir.
1996) (Ginsburg, J., concurring), that the signposts erected by the
Court are reasonably clear. Given those signposts, we are loath to
strike off in a different direction.
Second, we see no overriding policy reason to apply a
wholly different rule of finality to review of agency
determinations. Both in litigation and in administrative
proceedings, insisting upon a final decision before appellate
intervention promotes efficiency by avoiding disruption, delay,
duplication, and needless expense. Such a rule also allows the
tribunal of first instance, be it a court or an agency, an
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opportunity to shepherd a case to an orderly and expeditious
conclusion without the interruptions that accompany piecemeal
review. Compare Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,
430 (1985) (describing value of § 1291 finality rule), with
Standard Oil, 449 U.S. at 242-43 (describing value of final agency
action requirement). The collateral order doctrine does not
frustrate this requirement, but, rather, embodies a practical,
common sense realization that, in a few instances, the costs of
finality may outweigh its benefits. See Johnson v. Jones, 515 U.S.
304, 311 (1995). That is as true in the administrative context as
in a purely judicial setting.
There may, of course, be an argument that finality has
added value in the administrative context. Cf. McKart v. United
States, 395 U.S. 185, 194 (1969) (noting that postponing judicial
review of agency action until exhaustion of administrative review
is "an expression of executive and administrative autonomy")
(quoting Louis L. Jaffe, Judicial Control of Administrative Action
425 (1965)). On the whole, however, the idea that preserving
crucial collateral claims and avoiding potentially irreparable harm
occasionally justifies construing statutorily created finality
requirements with a modicum of flexibility seems to apply with
equal (or, at least, nearly equal) force to the review of both
judicial and administrative orders. See Meredith v. Fed. Mine
Safety & Health Rev. Comm'n, 177 F.3d 1042, 1050-51 (D.C. Cir.
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1999); Cmty. Broad. of Boston, Inc. v. FCC, 546 F.2d 1022, 1024
(D.C. Cir. 1976) (per curiam).
Third, and finally, every circuit to have considered the
question to date has determined (often with little or no analysis)
that the collateral order doctrine applies to judicial review of
administrative determinations. See Osage Tribal Council v. U.S.
Dep't of Labor, 187 F.3d 1174, 1179 (10th Cir. 1999); Meredith, 177
F.3d at 1050-51; Carolina Power & Light Co. v. U.S. Dep't of Labor,
43 F.3d 912, 916 (4th Cir. 1995); Jim Walter Res., Inc. v. Fed.
Mine Safety & Health Rev. Comm'n, 920 F.2d 738, 744 (11th Cir.
1990) (per curiam); Donovan v. OSHRC, 713 F.2d 918, 922-23 (2d Cir.
1983); Donovan v. Oil, Chem., & Atomic Workers Int'l Union, 718
F.2d 1341, 1344-45 (5th Cir. 1983); Marshall v. OSHRC, 635 F.2d
544, 548 (6th Cir. 1980). We are not disposed to divide the
circuits in the absence of any compelling justification for
creating a split. See, e.g., Alternative Sys. Concepts, Inc. v.
Synopsys, Inc., ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-1406,
slip op. at 15]. There is none here.
These three reasons converge to make a solid case for the
deployment of the collateral order doctrine in judicial review of
administrative determinations. Accordingly, we hold that the
doctrine is generally applicable in that context.
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C. The Denial of Intervention.
Against this backdrop, we turn to the question of whether
the EAB's order denying Rhode Island's motion to intervene
qualifies as an immediately appealable order under the collateral
order doctrine. To reach that safe harbor, the order must
"conclusively determine the disputed question, resolve an important
issue completely separate from the merits of the action, and be
effectively unreviewable on appeal from a final judgment." Coopers
& Lybrand v. Livesay, 437 U.S. 463, 468 (1978); accord In re
Recticel Foam Corp., 859 F.2d 1000, 1003-04 (1st Cir. 1988). The
order must meet all three of these requirements in order to qualify
for interlocutory review.
In this instance, the question of intervention plainly
satisfies the second prong of the test; the issue is separable from
the merits of the underlying proceeding. Cf. Williams v. Katz, 23
F.3d 190, 192 (7th Cir. 1994) (holding that the question of a
putative intervenor's status was "entirely separate from" the
underlying tort action). The first and third prongs, however,
comprise greater obstacles to Rhode Island's aspirations.
Under the first prong of the collateral order test, an
order must "conclusively determine the disputed question." Coopers
& Lybrand, 427 U.S. at 468. Tentative orders, subject to change
before the end of the proceedings, fall short of this benchmark.
Id. at 469 & n.11. This presents a potential problem here because
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the EAB denied Rhode Island's motion to intervene without prejudice
and indicated that it would allow the state to renew its motion if
an evidentiary hearing eventuated.
There is some authority suggesting that denials of
intervention without prejudice fail to satisfy Cohen's
"conclusiveness" requirement. See, e.g., United States v. City of
Milwaukee, 144 F.3d 524, 528-29 (7th Cir. 1998) (dismissing appeal
when district court had denied a motion to intervene on technical
grounds but at the same time had invited the appellant to refile).
Still, we easily can envision circumstances in which a denial of
intervention that is nominally "without prejudice" nonetheless may
be sufficiently conclusive to warrant immediate review. See, e.g.,
Conservation Law Found. of New Engl., Inc. v. Mosbacher, 966 F.2d
39, 41 (1st Cir. 1992). In this context, therefore, we are
reluctant to accord talismanic significance to a trier's use of the
term "without prejudice." Accord City of Milwaukee, 144 F.3d at
531 & n.14. Because the third prong of the collateral order test
offers a more clear-cut basis for resolving the issue, we leave the
questions surrounding the conclusiveness prong for another day.
This brings us to the third prong of the test:
unreviewability. An order flatly denying a motion to intervene in
a judicial proceeding is an immediately appealable collateral
order. See 6 James Wm. Moore, Moore's Federal Practice ¶ 24.24[1],
at 24-90 to 24-92 (3d ed. 2004); see, e.g., Pub. Serv. Co. v.
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Patch, 136 F.3d 197, 204 (1st Cir. 1998) (reviewing an order
denying intervention claimed as of right under Rule 24(a)). The
central rationale for permitting immediate review is that once
intervention has been denied, the putative intervenor "cannot
appeal from any subsequent order or judgment in the proceeding."
Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 524
(1947). Thus, in the absence of immediate appellate review, a
denial of intervention becomes, in Cohen terms, "effectively
unreviewable."
A denial of intervention in an EAB proceeding carries
critically different consequences. As said, a party who is refused
intervention in a court case cannot thereafter appeal from a final
judgment. 6 Moore's Federal Practice, supra ¶ 24.24[1], at 24-92
& n.5.4 (collecting cases). Under the CWA, however, "any
interested person," whether or not a party to the permit
proceedings before the EAB, is entitled to judicial review of the
final agency action (the regional administrator's issuance or
denial of a permit).1 See 33 U.S.C. § 1369(b)(1). While courts
have read this statute to incorporate, at a minimum, the injury-in-
1
This is a fairly typical provision in federal administrative
schemes. See, e.g., 26 U.S.C. § 9011 (permitting judicial review
of certain actions of the Federal Election Commission upon petition
"by any interested person"); 33 U.S.C. § 2717 (authorizing judicial
review of regulations promulgated under the Oil Pollution Act "upon
application by any interested person"); see generally 5 U.S.C. §
702 ("A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof.").
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fact requirement for Article III standing, see, e.g., Am. Forest &
Paper Ass'n v. EPA, 154 F.3d 1155, 1158 (10th Cir. 1998);
Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 578 (D.C. Cir.
1980), judicial review is not restricted to the parties in the EAB
proceeding.
For present purposes, this distinction looms large.
Assuming that Rhode Island meets the threshold "interested person"
requirement — if it does not, then it hardly can complain about the
denial of intervention — it will be entitled to appeal from the
EPA's final permitting decision, even without intervenor status.
See 33 U.S.C. § 1362(5) (defining "person" to include states). In
the course of that appeal, the state can challenge not only the
EAB's merits decision but also its decision to deny intervention.
Cf. 5 U.S.C. § 704 ("A preliminary, procedural, or intermediate
agency action or ruling not directly reviewable is subject to
review on the review of the final agency action."). Therefore, the
cases authorizing collateral review of denials of intervention in
judicial proceedings have scant persuasive force here.
We are guided, instead, by the Supreme Court's opinion in
Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987).
There, the district court denied a neighborhood group's motion to
intervene as of right and granted its motion for permissive
intervention while placing restrictions on the group's ability to
conduct discovery and assert new claims for relief. Id. at 373.
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The group prosecuted an immediate appeal. In due course, the
Supreme Court held that the grant of intervention, though severely
circumscribed, was not an immediately appealable collateral order.
Id. at 375. It emphasized the fact that the intervenor, although
limited as to the scope of its involvement in the litigation,
retained the power to appeal any final judgment and, in the
process, could attack the conditions imposed by the lower court.
Id. at 376. Distinguishing the case from those involving outright
denials of intervention, the Court concluded that the intervenor
could "obtain effective review of its claims on appeal from final
judgment." Id. Consequently, the appellants failed to satisfy the
third prong of the collateral order test. Id. at 375.
This emphasis on the ability vel non to prosecute an
efficacious end-of-case appeal after a denial of intervention has
not escaped notice. Precedent in this and other circuits draws the
same distinction. See, e.g., Eng v. Coughlin, 865 F.2d 521, 524-27
(2d Cir. 1989); Kartell v. Blue Shield of Mass., Inc., 687 F.2d
543, 550 (1st Cir. 1982).
We find this line of authority compelling. The judicial
review provisions of the CWA ensure that the denial of intervention
will neither extinguish nor curtail Rhode Island's right to appeal
upon the issuance of a final permit. This means, of course, that
there is nothing unreviewable about the EAB's denial of
intervention.
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Of course, Stringfellow advisedly phrased the
requirement, for purposes of the third prong of the collateral
order test, in terms of whether an order was amenable to "effective
review." 480 U.S. at 375 (emphasis supplied). The use of this
adjective recognizes that, occasionally, an order may be
technically subject to end-of-case review but that the appealing
party's interests may not be capable of vindication at that late
date. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985)
(discussing need for immediate review of interlocutory orders
refusing to grant qualified immunity); Abney v. United States, 431
U.S. 651, 660-62 (1977) (discussing need for immediate review of
interlocutory orders rejecting claims of double jeopardy).
This qualification does not help Rhode Island. In
Stringfellow, the Supreme Court held that the putative intervenors'
interest in taking a more robust role in the proceedings, however
substantial, would not be "irretrievably lost in the absence of an
immediate appeal." 480 U.S. at 376 (citation omitted). So it is
here: any harm that Rhode Island might suffer as a result of its
relegation to amicus status can be adequately redressed on appeal
from a final permitting decision. We explain briefly.
We have equated a showing of effective unreviewability
with a showing of irreparable harm arising out of the postponement
of appellate review. In re Recticel Foam, 859 F.2d at 1004. Rhode
Island has made no such showing here. Although the EAB denied
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Rhode Island's motion to intervene, the state retains the ability
to take part in the proceedings as an amicus. That status confers
upon it the same right to file briefs on both the evidentiary
question and the merits as the parties possess. See In re USGen,
supra, slip op. at 9-10. Unless there is an evidentiary hearing —
and in that contingency, Rhode Island is free to renew its motion
to intervene — those filings will end the parties' substantive
participation. It is, therefore, unsurprising that Rhode Island
has been unable to identify any cognizable harm that it stands to
suffer at this stage of the proceedings by virtue of participating
as an amicus rather than as an intervenor.2 Even were we to accept
Rhode Island's (counterfactual) assertion that it has been
prejudiced by the distinction, we see no basis for concluding that
this harm could not be vindicated adequately on judicial review of
a final permitting decision. It follows inexorably that there is
no theoretical foundation upon which to rest an invocation of the
2
Rhode Island argues that an amicus does not have the same
right to raise new issues as a party. Petitioner's Br. at 12.
That may be true in a court case, see, e.g., Lane v. First Nat'l
Bank, 871 F.2d 166, 175 (1st Cir. 1989), but there is nothing in
the CWA's regulatory framework that ordains such a result.
Furthermore, the EAB order explicitly provides that all
participants in the proceedings are limited to those issues already
raised in USGen's petition, drawing no distinction in that regard
between amici and intervenors. See In re USGen, supra, slip op. at
9 n.14, 10 n.15. Rhode Island also suggests that it will not be
permitted to file, or object to, motions. Petitioner's Reply Br.
at 12. But there is nothing in the administrative scheme that
restricts motion practice to parties and intervenors, and the EAB
has indicated a willingness to allow amici to participate fully in
the adjudication of all substantive motions.
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collateral order doctrine. See Stringfellow, 480 U.S. at 376;
Kartell, 687 F.2d at 550.
To say that Rhode Island's interests will not be
irretrievably prejudiced in the absence of an immediate appeal is
not to say that postponing review until the occurrence of final
agency action is cost-free. By refusing to intercede at this
stage, we introduce the prospect of duplicative proceedings should
the denial of intervention eventually be deemed improvident. That
sort of cost is real, but it is an almost inevitable byproduct of
the finality rule in ordinary litigation as well as in
administrative adjudication. Cf. R.R. Donnelley & Sons Co. v. FTC,
931 F.2d 430, 431 (7th Cir. 1991) ("If the cost, delay, and
aggravation of litigation made an order final, the distinction
between interlocutory and final decisions would collapse, and
courts of appeals would be deluged."). The finality requirement
embodies a "preference that some erroneous trial court rulings go
uncorrected until the appeal of a final judgment, rather than
having litigation punctuated by piecemeal appellate review."
Richardson-Merrell, 472 U.S. at 430 (citation and internal
quotation marks omitted). This case is no exception.
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IV. CONCLUSION
We need go no further.3 We do not minimize Rhode
Island's interest in the purity of the waters of Mount Hope Bay —
but Rhode Island has the ability to protect that interest
adequately on an end-of-case appeal from whatever final permitting
decision eventuates. Thus, its appeal fails to meet the
unreviewability prong of the collateral order test. As said,
unreviewability is a sine qua non for immediately appealable
collateral orders. See Stringfellow, 480 U.S. at 375; Kartell, 687
F.2d at 550. Accordingly, we lack jurisdiction, in the present
posture of the case, to hear and determine Rhode Island's complaint
3
There is another potential ground for deeming the collateral
order doctrine inapplicable in this case: the precise (and
somewhat unorthodox) wording of the jurisdictional grant contained
in 33 U.S.C. § 1369(b)(1)(F). Unlike, say, section 704 of the
Administrative Procedure Act, 5 U.S.C. § 704 (which provides
generally for judicial review of any "final agency action") or the
counterpart provision found in the Clean Air Act, 42 U.S.C. §
7607(b)(1) (which provides for judicial review of regulations,
orders, "or any other final action[s] of the Administrator"), the
CWA restricts judicial review to actions taken "in issuing or
denying any permit." 33 U.S.C. § 1369(b)(1)(F). Because judicial
review is triggered only by actions "issuing or denying" permits
and not by final agency actions generally, it is at least arguable
that section 1369(b)(1)(F) may not be amenable to a pragmatic
construction that allows for any judicial review before a final
permitting decision is made. Cf. Appalachian Energy Group, 33 F.3d
at 322 (suggesting that the CWA's text allows courts "to review
only those categories of agency action identified" in the statute
itself). This is an intellectually interesting point but because
we decide that the collateral order doctrine, even if available,
does not apply in this instance, we need not probe it more deeply.
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that the EAB improperly prevented it from intervening in the
permitting proceedings.4
The petition for judicial review is dismissed without
prejudice for want of appellate jurisdiction.
4
On July 23, 2004, while this opinion was at the printer's,
the EAB denied USGen's motion for an evidentiary hearing, scheduled
oral argument on the merits of the permitting decision, and granted
Rhode Island the right to participate in those arguments (albeit as
an amicus). Viewed collectively, these orders reinforce the
conclusions reached in this opinion.
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Rhode Island v. United States Environmental Protection Agency
Court: Court of Appeals for the First Circuit
Date filed: 2004-08-03
Citations: 378 F.3d 19
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