No, the EPA didn't go too far, and no, the companies can't sue about the guidance memo yet. The court said that government agencies are allowed to talk to each other and coordinate their work—it's just good government. The new coordination process didn't change any actual rules, it just changed how the agencies worked together. As for the guidance memo, the court said it's not a real 'rule' because no one is legally required to follow it. It's just advice. If the EPA later uses that advice to deny a company's permit, then the company can sue.

No, the EPA and the Army Corps didn't do anything wrong or outside their power. They are allowed to make a new process for working together on permits, and the law doesn't stop them from talking to each other. 

The advice the EPA gave is just advice and doesn't have to be followed by law. States can ignore it without getting in trouble. The advice can't be challenged in court unless a permit is actually denied because of it. Then, the company that was denied can sue, and the EPA can't use the advice to defend the denial.

No, the Enhanced Coordination Process is a valid exercise of agency authority, and the Final Guidance is not a final, reviewable agency action. The Clean Water Act does not prohibit inter-agency consultation, which is a commonplace and constitutionally sound feature of a unitary Executive Branch under Article II. The ECP is a procedural rule that does not alter the substantive criteria for permits or the ultimate decision-making authority of the Corps, and thus it did not require notice-and-comment rulemaking. The Final Guidance is not a 'final agency action' because it fails the second prong of the test from Bennett v. Spear; it is not an action from which 'legal consequences will flow' as it imposes no legally binding obligations on states or permit applicants. Therefore, the Guidance is a non-reviewable general statement of policy, and any legal challenge must wait until it is applied in a specific permit denial.

No, the EPA and the Army Corps of Engineers acted within their statutory authority under the Clean Water Act when adopting the Enhanced Coordination Process because nothing in the statute forbids inter-agency consultation and coordination. Restricting such consultation and coordination would raise significant constitutional concerns under Article II. The Enhanced Coordination Process is a procedural rule that did not require notice and comment. 

The Final Guidance is not a final agency action reviewable by the courts at this time because it does not impose any legally binding obligations or prohibitions on regulated entities. The Final Guidance does not tell regulated parties what they must or may not do to avoid liability, and state permitting authorities are free to ignore it without legal consequences. If and when a permit applicant is denied a permit, the applicant may challenge the denial and the Final Guidance may not be relied upon by the EPA as a defense.

National Mining Association v. Gina McCarthy

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