Recent U.S. Appeals Court decisions

<> National Mining Association v. Gina McCarthy - 7/11/14. In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5310. The Panel concludes, "that the Enhanced Coordination Process memorandum is a procedural rule that EPA and the Corps had authority to enact under the Clean Water Act. Under our case law, we conclude that the Final Guidance is not a final agency action subject to review at this time. We therefore reverse the District Court's grant of summary judgment and remand to the District Court with instructions to grant judgment for defendants on the Enhanced Coordination Process and to dismiss the challenge to the Final Guidance."

• The D.C. Circuit Rejects Challenge to EPA's Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final to Be Appealable - On Friday, the D.C. Circuit reversed Judge Reggie Walton's decision from 2012 and affirmed EPA's authority to adopt the "Enhanced Coordination Process" governing coordination with the Army Corps of Engineers. . .

<> Southern Appalachian Mountain Stewards v. A & G Coal Corporation - 7/11/14. In the U.S. Court of Appeals, Fourth Circuit, Case No. 13-2050. The question in this case is whether the defendant-appellant, A & G Coal Corporation ("A&G"), can assert a "permit shield" defense for discharges of selenium when it failed to disclose the presence of this pollutant during the permit application process. The Panel held that the shield defense is unavailable to A&G.

• Mountaintop Removal Mines are not automatically shielded; will be held accountable for unpermitted pollution

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