Trout Unlimited v. Bristol Bay Economic Development Corp., No. 20-35504 (9th Cir. 2021)
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Petitioner challenged the EPA's 2019 withdrawal of its 2014 proposed determination to exercise its authority under Section 404(c) of the Clean Water Act to restrict the ability of miners to operate in part of the Bristol Bay watershed in southwestern Alaska. The district court held that the EPA's decision was unreviewable pursuant to 5 U.S.C. 701(a)(2) and Heckler v. Chaney, 470 U.S. 821 (1985). The district court determined that neither the Clean Water Act nor the EPA's regulations include a meaningful legal standard governing the EPA's decision.
Reviewing de novo, the panel held that (a) the Clean Water Act contains no meaningful legal standard in its broad grant of discretion to the EPA but that (b) the EPA's regulations do contain a meaningful legal standard. In particular, 40 C.F.R. 231.5(a) allows the EPA to withdraw a proposed determination only when an "unacceptable adverse effect" on specified resources is not "likely." Accordingly, the panel affirmed in part and reversed in part the district court's dismissal. The panel remanded for further proceedings to determine whether the EPA's withdrawal was arbitrary, capricious, an abuse of discretion, or contrary to law.
Court Description: Environmental Law / Administrative Procedure Act. The panel affirmed in part, and reversed in part, the district court’s dismissal of an action challenging the U.S. Environmental Protection Agency (“EPA”)’s 2019 withdrawal of its 2014 proposed determination to exercise its authority under Section 404(c) of the Clean Water Act to restrict the ability of miners to operate in part of the Bristol Bay watershed in southwestern Alaska. The district court held the EPA’s decision was unreviewable pursuant to 5 U.S.C. § 701(a)(2) of the Administrative Procedure Act’s exception to reviewability, and Heckler v. Chaney, 470 U.S. 821 (1985), because neither the Clean Water Act nor the EPA’s regulations included a meaningful legal standard governing the EPA’s decision. ** The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas, sitting by designation. 4 TROUT UNLIMITED V. PIRZADEH Reviewing de novo, the panel held that the Clean Water Act contained no meaningful legal standard in its broad grant of discretion to the EPA, but the EPA’s regulations contained a meaningful legal standard. Specifically, to the extent that plaintiff’s complaint challenged the EPA Administrator’s failure to take action pursuant to the Clean Water Act, without reference to the agency’s implementing regulations, the panel held that it lacked jurisdiction. Accordingly, the panel affirmed the district court’s dismissal of plaintiff’s complaint insofar as the complaint rested directly on the Clean Water Act. The panel held, however, that 40 C.F.R. § 231.5(a) allowed the EPA to withdraw a proposed determination only when an “unacceptable adverse effect” on specified resources was not “likely.” Accordingly, the decision was subject to judicial review under the Administrative Procedure Act. The panel remanded for further proceedings to determine whether the EPA’s withdrawal was arbitrary, capricious, an abuse of discretion, or contrary to law pursuant to 5 U.S.C. § 706(2)(A). The panel rejected the EPA’s argument that the withdrawal of the proposed determination here was best characterized as an agency’s decision not to take enforcement action that was presumptively unreviewable. Dissenting, Judge Bress would hold that the agency’s withdrawal from its discretionary exploratory process was not subject to judicial review. Judge Bress wrote that the majority opinion turned on a misreading of the governing regulations, rewrote the rules that the EPA set for itself, and inserted courts into what was supposed to be the preliminary stages of a discretionary agency review process. TROUT UNLIMITED V. PIRZADEH 5
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