In a second look at withdrawal of fill disposal sites by the U.S. Environmental Protection Agency (EPA) from a federal Clean Water Act (CWA) § 404 permit issued several years before by the U.S. Army Corps of Engineers (Corps), the D.C. Circuit Court of Appeals bolstered its prior holding that EPA’s “backstop” 404 permitting authority allows post-issuance permit revocation, holding this time around that the agency’s revocation was not arbitrary or capricious under the Administrative Procedure Act (APA). This case also involves a dramatic application of the waiver doctrine: the permit holder’s allegation the permit withdrawal would cost it “millions of dollars” in reliance costs, without any more detail, was held insufficient to trigger any duty by the EPA to engage in any cost-benefit analysis. [Mingo Logan Coal Company v. U.S. Environmental Protection Agency, ___F.3d___, Case No. 14-5305 (D.C. Cir. July 19, 2016).]
Soundly affirming a broad scope of application for EPA’s post-issuance “back-stop” authority to allow withdrawal or revocation on the basis of downstream adverse effects, this decision dramatically underlines the importance of preserving litigation theories by laying a solid foundation in agency proceedings. Even when those proceedings may appear to be driven by technical, rather than legal, considerations, it is critical to consider the long-term litigation options—including at the appellate level—even at the notice and comment period stage of permitting. The D.C. Circuit’s decision is accessible online at: https://www.cadc.uscourts.gov/internet/opinions.nsf/3D375003952F4CDE85257FF500506715/$file/14-5305-1625459.pdf
(Deborah Quick)