State of West Virginia v. U.S. Department of the Treasury
82 F.4th 1068 (2023)
Rule of Law:
An agency action is considered 'final' and thus reviewable under the Administrative Procedure Act only if it marks the consummation of the agency's decisionmaking process and creates legal rights or obligations, or fixes legal relationships.
Facts:
- In 1991, Georgia adopted water quality standards for copper, which the EPA approved.
- The EPA later developed new scientific information, the Copper Biotic Ligand Model (BLM), which suggested that Georgia's 1991 copper standards were outdated and potentially underprotective.
- In 2017, the EPA sent an email to the Georgia Environmental Protection Division (EPD) recommending that Georgia reconsider and revise its copper water quality standards to incorporate the new BLM.
- The EPA subsequently sent letters and engaged in discussions with Georgia EPD regarding the importance of updating the standards and using the BLM.
- Georgia EPD did not initiate the process of revising its copper water quality standards in response to the EPA's communications.
- The Southern Environmental Law Center (SELC) and other environmental groups sought to compel the EPA to withdraw its 1991 approval of Georgia's standards, arguing that EPA had implicitly determined the standards were no longer protective.
Procedural Posture:
- The Southern Environmental Law Center (SELC) and other environmental groups sued the U.S. Environmental Protection Agency (EPA) in the United States District Court for the Northern District of Georgia.
- The district court dismissed the complaint, ruling that the EPA's communications regarding Georgia's copper standards did not constitute 'final agency action' and therefore the court lacked subject matter jurisdiction.
- SELC appealed the district court's dismissal to a three-judge panel of the United States Court of Appeals for the Eleventh Circuit, with SELC as the appellant and EPA as the appellee.
- The Eleventh Circuit panel reversed the district court's decision, concluding that the EPA's actions did constitute final agency action.
- The EPA, as appellee, filed a petition for rehearing en banc, which the Eleventh Circuit granted, vacating the panel's prior opinion.
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Issue:
Does the U.S. Environmental Protection Agency's email communication to the Georgia Environmental Protection Division, recommending reconsideration of state water quality standards for copper based on new scientific information, constitute a 'final agency action' reviewable by a federal court under the Administrative Procedure Act?
Opinions:
Majority - William Pryor, Chief Judge
No, the U.S. Environmental Protection Agency's email communication and subsequent statements to the Georgia Environmental Protection Division, recommending reconsideration of state water quality standards, do not constitute a 'final agency action' reviewable under the Administrative Procedure Act because they did not mark the consummation of the agency's decisionmaking and did not create legal rights or obligations. Applying the two-part test from Bennett v. Spear, the court found that the EPA's email was merely a recommendation, urging Georgia to initiate a state-level process to revise its standards. It did not definitively determine the validity of the existing standards or impose any legal obligation on Georgia. The EPA's action was not the agency's 'last word' on the matter, as it retained the authority to initiate further action, such as formally withdrawing its approval of Georgia's standards. The court distinguished this case from situations where an agency's inaction or refusal to act is reviewable, noting that here, the EPA had not taken any definitive regulatory action but rather offered guidance. The communications were not coercive because Georgia was not legally required to act on them, and the case was distinguishable from Sackett, where EPA compliance orders carried direct legal consequences.
Concurring - Kevin Newsom, Circuit Judge
Yes, I agree that the EPA's email and related communications did not constitute final agency action, and I write separately to elaborate on the appropriate application of the Bennett v. Spear test. Judge Newsom emphasized that the key distinction often lies between a formal 'pronouncement' by an agency and mere 'discussion' or 'deliberation.' He highlighted that even if an agency communicates a strong view, it does not become final unless it carries legal weight or mandates a particular outcome. The EPA's communications were 'an ask, not a tell,' and did not have the force of law. He stressed that the agency explicitly stated it was not taking action to withdraw approval, thus signaling it was not a consummated decision. Judge Rosenbaum joined this opinion.
Dissenting - Adalberto Jordan, Circuit Judge
No, the majority incorrectly concludes that the EPA's actions were not final agency action; in fact, the EPA's statements and conduct amounted to a determination that Georgia's existing water quality standards were no longer compliant with the Clean Water Act, making it a final action. Judge Jordan argued that the EPA effectively made a definitive determination that Georgia's copper standards were no longer protective of water quality, and this determination had legal consequences. He contended that the EPA's pronouncements regarding the inadequacy of Georgia's standards and the necessity of using the BLM constituted its 'last word' on the scientific basis for the standards, satisfying the first prong of Bennett. For the second prong, he argued that these pronouncements directly impacted the legal relationships of the parties, forcing Georgia into a position where it must either revise its standards or risk future EPA intervention. He viewed the EPA's 2017 communication as an implicit withdrawal of its 1991 approval, or at least a binding determination that the standards were deficient. Judges Wilson and Martin joined this opinion.
Analysis:
This case provides a critical clarification on the 'final agency action' doctrine under the Administrative Procedure Act, particularly within the Eleventh Circuit. By narrowly interpreting the Bennett v. Spear test, the court emphasizes that mere agency recommendations or strongly worded guidance, absent a formal consummated decision or the imposition of legal rights/obligations, are not immediately reviewable. The decision reinforces agencies' flexibility to engage in scientific updates and policy discussions with states without automatically triggering judicial oversight, potentially limiting opportunities for environmental groups to challenge perceived agency inaction based on informal communications. This ruling highlights the high bar for judicial review of agency inaction or preliminary guidance.
