9th Circuit Finds Courts May Review EPA Withdrawals Of CWA Permit 'Veto'

摘要

A federal appellate court in a precedent-setting decision has found that courts can review whether an EPA withdrawal of a proposed Clean Water Act (CWA) permit "veto" violated the Administrative Procedure Act (APA) but has left it to a lower court to determine whether a Trump EPA withdrawal of a proposed permit veto of the Pebble Mine was arbitrary and capricious. The 2-1 ruling from the U.S. Court of Appeals for the 9th Circuit issued June 17 in Trout Unlimited, et al. v. Pirzadeh follows oral argument last year where the judges openly struggled with whether they had jurisdiction - and the related question of what legal standard to use - to review a legal challenge to the Trump EPA's 2019 decision to withdraw a proposed, preemptive CWA section 404 "veto" of the planned Pebble Mine in Alaska. The ruling affirms in part and reverses in part an April 2020 ruling from the U.S. District Court for the District of Alaska that found EPA's withdrawal was an enforcement decision shielded from court challenges under the APA. The majority opinion, written by Judge Susan Graber, a Clinton appointee, and Senior Judge Robert Dawson, a Clinton appointee to the U.S. District Court for the Western District of Arkansas, sitting on the 9th Circuit panel by designation, agrees with the Alaska district court that the CWA contains no meaningful legal standard in its broad grant of discretion to the EPA under section 404(c).