EPA Withdrawal of Its Proposed Veto of a 404 Permit Is Reviewable — This Should Not Be Earth-shattering News

Foley Hoag LLP - Environmental Law

Foley Hoag LLP - Environmental Law

Last week, the 9th Circuit Court of Appeals ruled that EPA’s decision to withdraw its proposed veto of the Army Corps’ Section 404 permit for the Pebble Mine project in Bristol Bay, Alaska, was subject to judicial review.  Although there was a dissent and the majority opinion was 39 pages, I don’t think that the case should have been so hard.

The Court noted the “strong presumption” that final agency action is subject to judicial review.  It noted that the relevant exception here is whether “agency action is committed to agency discretion by law.”  There’s nothing in the Clean Water Act that commits EPA decisions under 404 to its discretion.  For reasons that remain a mystery to me, the question whether an issue has been committed to agency discretion has morphed into a rule that agency action is unreviewable only:

if no judicially manageable standards are available for judging how and when an agency should exercise its discretion.

Silly me, but I thought that that’s what courts do – they determine the standards to apply in judging whether a challenged agency action was lawful.

I recognize that federal courts are of limited jurisdiction, but the “strong presumption” of the reviewability of agency action is not supposed to be mere words, subject to the almost unlimited creativity of judges who would rather not hear a case.  Agency action should pretty much always be reviewable, if it’s final and if it has legal consequences.

And I’ll note that this is not a left/right ideological issue.  In another recent case, Judge Terry Doughty enjoined the Biden Administration’s pause on the issuance of new fossil fuel leases on public lands and in offshore waters.  I may disagree with Judge Doughty on the merits, but I absolutely agree with his conclusion that the pause was not committed to agency discretion by law.  Liberals and conservatives alike can challenge agency action with which they disagree.

Agencies don’t always get it right.  To me, judicial review of final agency action is a cornerstone of public faith in the administrative state.  If we want people to trust government, then they have to believe that there is a meaningful check on agency action that is arbitrary and capricious.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Foley Hoag LLP - Environmental Law

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