United States Court of Appeals, District of Columbia Circuit
April 11, 2016
from the United States District Court for the District of
Columbia (No. 1:10-cv-00541)
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
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.
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.
LeCraft Henderson, Circuit Judge
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');">70 F.Supp. 3d 151,
183 (D.D.C. 2014).
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
Statutory and Regulatory Background
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." 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.
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 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") 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.
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
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. § 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.
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. §
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 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,
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
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.
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.
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.
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).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.
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, 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.
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. 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
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 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.
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.
remand, the district court concluded that the EPA's Final
Determination complied with the APA. See Mingo
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
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 [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)).
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.
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 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.
EPA's Consideration of Relevant Factors
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.
response, the EPA concedes that it did not consider Mingo
Logan's reliance costs or its compliance history and, in
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.
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).
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
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.
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. Equally absent was a
detailing of these costs 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.
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, 2010)-Mingo Logan never claimed that the EPA had to
balance reliance costs against environmental
effects nor did it detail those
costs. Accordingly, by failing to make the claim before the
EPA, Mingo Logan forfeited it.
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
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.
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
(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?"
Supplemental Br. in Supp. of Mingo Logan's Mot. for Summ.
J. at 1–3, Mingo Logan III, 70 F.Supp. 3d 151');">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 ...