Natural Resources Defense Council v. United States Environmental Protection Agency
279 F.3d 1180 (2002)
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Rule of Law:
Under the Administrative Procedures Act, a final agency rule must be a "logical outgrowth" of the proposed rule. If the final rule deviates so sharply from the proposal that interested parties could not have reasonably anticipated the change, the agency must provide a new period for public notice and comment.
Facts:
- Log transfer facilities (LTFs) in Alaska transport logs through marine waters, which causes bark and woody debris to be discharged into the water.
- This bark and woody debris accumulates on the seafloor, harming marine life and degrading water quality, and is classified as a pollutant under the Clean Water Act.
- The Environmental Protection Agency (EPA) issued a draft general permit for public comment to regulate these discharges from Alaska LTFs.
- The draft permit explicitly stated that the state of Alaska proposed to authorize a one-acre "zone of deposit" (ZOD) where bark accumulation would be permitted, consistent with long-standing guidelines.
- After the public comment period on the EPA's draft permit closed, the Alaska Department of Environmental Conservation (ADEC) changed its position during its separate state certification process.
- ADEC abandoned the one-acre limit and instead certified a new standard allowing for a much larger, undefined "project-area" ZOD.
- The EPA expressed concern to ADEC that this change was less stringent but ultimately accepted ADEC's certification.
- The EPA then issued its final general permits incorporating the new, unanticipated "project-area" ZOD standard without providing a new opportunity for public comment.
Procedural Posture:
- The U.S. Environmental Protection Agency (EPA) issued two final general permits, AK-G70-0000 and AK-G70-1000, regulating discharges from log transfer facilities in Alaska.
- Petitioners filed a petition for review of the final permits directly with the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does the Environmental Protection Agency violate the Administrative Procedures Act's notice and comment requirements when its final general permit contains a significant change from the draft permit that interested parties could not have reasonably anticipated?
Opinions:
Majority - Thomas, Circuit Judge
Yes. The EPA's final permits, which adopted a 'project-area' zone of deposit, were not a logical outgrowth of the draft permit, which proposed a one-acre zone of deposit, thereby violating the Administrative Procedures Act's notice and comment requirements. The court reasoned that the essential inquiry is whether interested parties could have reasonably anticipated the final rule from the draft permit. Given that the draft permit specifically referenced a one-acre zone consistent with established guidelines, the public was not fairly apprised that a fundamental shift to an undefined 'project-area' zone was under consideration. The EPA has an independent statutory obligation under the Clean Water Act to ensure compliance with water quality standards, and it cannot bypass its notice and comment duties just because the change originated in a state certification process. Because the final rule deviated sharply from the proposal and the public was not given a chance to comment on this substantive change, the agency's action was arbitrary.
Analysis:
This decision reinforces the strength of the "logical outgrowth" doctrine in administrative law, preventing agencies from engaging in a "bait-and-switch" during rulemaking. It clarifies that a federal agency's duty to provide notice and comment is independent and cannot be circumvented by procedural actions of a state partner agency. The ruling ensures that the public has a meaningful opportunity to comment on the substantive, material provisions that actually end up in a final rule, promoting transparency and accountability. Future agency actions will be scrutinized to ensure that final rules do not contain surprising, fundamental shifts from what was originally proposed to the public.
