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The Department of Justice (DOJ) is asking a federal court to set aside a controversial Interior Department (DOI) rule governing the disposal of coal mining waste and to dismiss as moot environmentalists’ claims that EPA violated federal laws when it backed the rule — or to rule for the government on those claims.
The Nov. 8 motion for summary judgment goes further than previous DOJ requests to the U.S. District Court for the District of Columbia because it seeks to address all counts in two separate but related cases challenging a 2008 DOI rule that exempted so-called valley fills and other mining waste disposal activities from requirements to protect a 100-foot buffer zone around streams. The buffer zone requirements had been contained in a 1983 mining rule.
DOJ contends that because it is conceding it breached an Endangered Species Act (ESA) requirement in developing the 2008 rule, the regulation should be vacated, thereby making all other environmental and administrative law allegations moot.
In the first case, National Parks Conservation Association (NPCA) v. S.M.R. Jewell, et al., NPCA alleges the 2008 rule is flawed because DOI’s Office of Surface Mining Reclamation and Enforcement (OSM) failed to comply with some ESA requirements. NPCA also alleges that EPA’s concurrence with OSM’s promulgation of the stream buffer zone (SBZ) rule violates the ESA and the Clean Water Act (CWA).
OSM has acknowledged that it failed to consult with the U.S. Fish and Wildlife Service under the ESA concerning possible effects of the SBZ rule on threatened and endangered species or on critical habitat, and both OSM and NPCA want the court to vacate the rule on these grounds.
But the National Mining Association (NMA), an intervenor-defendant in the case, maintains there was no ESA violation, and argues that if the court finds an ESA violation, then the court should remand the 2008 rule without vacatur. In a Nov. 12 supplemental brief, NMA says it would be improper to vacate the complex 2008 rule “merely because the Government now ‘confesses error’ on a single procedural aspect of the rulemaking.” Vacating the rule, rather than remanding without vacatur, “is inappropriate, because it would erase the entire rule from the Code of Federal Regulations without any of the proper rulemaking procedures under the Administrative Procedure Act [(APA)],” NMA says.
The court, however, indicated at a Sept. 12 status conference that “it would not favor remand as a remedy in the event a violation of the ESA is established,” DOJ says in its Nov. 8 brief.
In the second case, Coal River Mountain Watch (CRMW), et al. v. S.M.R. Jewell, et al., environmentalists argue the 2008 rule violated the National Environmental Procedure Act (NEPA), the Surface Mining Control and Reclamation Act (SMCRA) and the APA when it declared that revising the buffer zone requirements was the environmentally preferred alternative. The case also charges that EPA violated the APA and the Clean Water Act when it concurred with the 2008 rule, but environmentalists have only sought summary judgment on the NEPA and APA charges relating to OSM.
DOJ previously sought a voluntary vacatur and remand in the NPCA case and sought to dismiss the CRMW case as moot. But the court in a 2009 memorandum opinion held that vacatur of the rule without a decision on the merits would, under the circumstances, violate the APA. The court also denied DOJ’s motion to dismiss the CRMW case.
In response to CRMW’s original complaint, DOI had reached an out-of-court settlement with environmentalists to revise the 2008 rule but failed to meet the July 29, 2012, deadline for finalizing a new rule, prompting renewal of the litigation.
OSM has been working on revisions to the 2008 rule for several years but has said a new rule is not imminent because it is taking into account the flood of industry and GOP concerns about the decision to revise the 2008 rule and is evaluating the economic and environmental impacts of possible changes.
DOJ is once again seeking vacatur of the rule and dismissal of all non-ESA consultation allegations, saying the court is not bound by the 2009 opinion.
“Because the record shows that OSM erred by failing to engage in the required ESA consultation before promulgating the SBZ Rule, the proper judicial remedy under the APA is for the SBZ Rule to be set aside as the parties have requested,” DOJ says in the Nov. 8 motion.
“Setting aside the SBZ Rule would, in turn, render NPCA’s remaining claims and all of the Coal River Plaintiffs’ claims moot,” DOJ continues. “Accordingly, all of those claims should be dismissed.”
But if the court determines that CRMW’s claims against OSM are not moot, the claims nonetheless lack merit, because the promulgation of the SBZ rule did not violate SMCRA or NEPA, and OSM has provided a reasoned explanation for its action, DOJ says.
Additionally, the claims in both cases “seeking review of EPA’s concurrence in the SBZ Rule must fail for a number of other reasons,” DOJ says. CRMW’s claims regarding EPA’s actions should be deemed abandoned or waived because the plaintiffs have not sought summary judgment on those claims, DOJ says.
But even if they are not waived, both the CRMW and NPCA claims against EPA lack subject-matter jurisdiction or fail to state a claim for relief, for several reasons, DOJ says. First, EPA’s concurrence is not a “final action” and therefore is not subject to judicial review. Second, the concurrence is an action “committed to agency discretion by law.” And third, the action is not subject to the APA’s requirements for notice-and-comment rulemaking.
CRMW disputes DOJ’s position that all non-ESA claims should be dismissed if the court sets aside the SBZ rule on the ESA consultation argument, DOJ’s brief says.
While the government argues that vacating the rule will eliminate a live “case or controversy” where the court could fashion additional relief, CRMW suggests “that the Court should not issue a judgment until it determines whether the 2008 SBZ Rule is ‘compatible with the 1983 regulation’s plain text,’” DOJ says.
But DOJ says, “Contrary to the Coal River Plaintiffs’ arguments, the Court would not need to determine how the SBZ Rule compares to a previous regulation or decide how that previous regulation should be interpreted.” Additionally CRMW’s arguments fail because OSM’s confession of error in response to the ESA consultation claim “makes any inquiry into the 1983 regulations a purely academic exercise,” DOJ says.
The claims challenging EPA’s concurrence would also be rendered moot by setting aside the SBZ rule, the government says. “As noted above, obtaining EPA’s concurrence was a statutory precondition for OSM’s authority to promulgate the SBZ Rule. If that rule is set aside, however, then there can be no question that EPA’s concurrence standing alone would cease to have any legal effect,” DOJ says. “OSM would have to seek EPA’s concurrence again before promulgating a new regulation; it cannot rely on the 2008 concurrence for purposes of a new rulemaking. Thus, if the SBZ Rule is set aside there will no longer be a live ‘case or controversy’ with respect to any claim against EPA.” — Lara Beaven <em>(</em>firstname.lastname@example.org)