UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

RANDY C. HUFFMAN, in his official capacity as Cabinet Secretary of the West Virginia Department of Environmental Protection, and acting on behalf of the, STATE OF WEST VIRGINIA

Plaintiffs,

v. Civil Action No. 2:10-01189

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and LISA P. JACKSON, in her official capacity as Administrator, United States Environmental Protection Agency, and UNITED STATES ARMY CORPS OF ENGINEERS and JOHN M. MCHUGH, in his official capacity as Secretary of the Army, and LIEUTENANT GENERAL ROBERT L. VAN ANTWERP, in his official capacity as United States Army Chief of Engineers and Commanding General of the United States Army Corp of Engineers,

Defendants

MEMORANDUM OPINION AND ORDER

Pending are defendants’ motion to transfer this action

to the United States District Court for the District of Columbia

(D.C. District Court) filed October 27, 2010, and a motion to

intervene as defendants filed by putative intervenors Sierra

Club, West Virginia Highlands Conservancy, Coal River Mountain

Watch, Ohio Valley Environmental Coalition, Kentuckians for the Commonwealth, Southern Appalachian Mountain Stewards, and

Statewide Organizing for Community Empowerment filed November 16,

2010.

I.

A. Litigation in the D.C. District Court

On July 20, 2010, the National Mining Association

(“NMA”), a mining industry trade association, instituted an

action against the defendants in the D.C. District Court (“NMA

action”). The complaint casts the NMA action as

challeng[ing] a series of EPA and Corps actions that have unlawfully obstructed Clean Water Act permitting processes for coal mining. NMA brings this action under Section 702 of the Administrative Procedure Act ("APA"),

, seeking review of the June 11, 2009 Enhanced Coordination Process ("EC Process") memoranda . . . and the April 11, 2010 Detailed Guidance Memorandum (“Detailed Guidance”) . . . as contrary to the APA, the Clean Water Act ("CWA"),

et seq., the Surface Mining Control and Reclamation Act ("SMCRA"),

et seq., and other federal law. As explained in the Factual Background section, infra, these memoranda substantially and illegally amend the statutory and regulatory permitting processes for coal mining that form the backbone of coal companies' expectations in planning to extract coal for our nation's power supply, particularly for those companies that require "valley fills" for their coal mining operations.

(D.C. Action Compl. ¶ 2 (“In January 2009, in a marked departure

from prior, longstanding EPA practice . . . EPA initiated an

2 extra-regulatory review process for CWA Section 404 permits that

had no basis in the Corps' or EPA's codified procedures.”)).1

NMA alleges that “the EC Process will apply to Section 404 permit

applications in six states and three EPA regions in the eastern

United States.” (Id. ¶ 58).

NMA identifies EPA's “first step” in the EC Process as

a screening device for all pending Section 404 permit

applications. Those pending applications now number over 200.

This screening, referred to as the Multi-Criteria Integrated

Resource Assessment (“MCIR Assessment”), sets a threshold of

acceptable mining impacts. Application of the MCIR Assessment is

designed to generate a list of permits that do not meet the

threshold. If the threshold is not met, the further requirements

of the EC Process are apparently used for permit review purposes

rather than the usual Corps regulatory process.

The NMA action alleges that “EPA's development and use

of the MCIR Assessment for evaluating Section 404 permit

applications and identifying them for application of EC Process

is not embodied or otherwise provided for in any properly

1 Section 404 of the CWA covers discharges of dredged or fill material into the waters of the United States.

(a). The Secretary of the Army is authorized to issue permits for the discharges.

The Secretary of the Army has delegated his authority on the matter to the Corps. See

(a).

3 promulgated regulation, nor has it been subjected to public

notice and comment.” (Id. ¶ 63). As of September 11, 2009, EPA

had used the MCIR Assessment to screen off 79 coal-related

Section 404 permit applications for further scrutiny under the EC

Process. The screened permit applications involved mining

projects in Ohio, Pennsylvania, Tennessee, Virginia, Kentucky,

and West Virginia.

The NMA action asserts 11 claims against defendants as

follows:

Count One: The EC Process constitutes a legislative rule that was not properly promulgated under the APA in violation of section 5532;

Count Two: The MCIR Assessment offends section 553 for the same reason;

Count Three: The Detailed Guidance offends section 553 for the same reason;

Count Four: The EC Process violates the CWA inasmuch as it is, inter alia, disruptive of the Congressional division of authority between the Corps and EPA in Section 404 permitting decisions;

Count Five: The MCIR Assessment is contrary to the CWA insofar as it attempts, inter alia, to usurp the Corps’ exclusive role at the onset of the Section 404 permitting process;

Count Six: The Detailed Guidance is contrary to the CWA inasmuch as it purports to, inter alia, impose an

2 Title

(b) and (c) respectively provide for notice of proposed agency rule making and an opportunity to comment. Id.; United States v. Gould,

(4th Cir. 2009).

4 impermissible water quality standard on the states contrary to both the CWA and EPA’s regulatory interpretation of that statute;

Count Seven: The aforementioned, impermissible water quality standard, which supposes that in-stream conductivity levels above 500 microSiemens per centimeter are likely to be associated with adverse water quality impacts, constitutes an “impermissible and irrational administrative presumption[];” (NMA Compl. ¶ 124).

Count Eight: The Detailed Guidance is contrary to . . . [the National Environmental Policy Act of 1969 (“NEPA”)] inasmuch as it purports to establish NEPA procedures applicable to coal mining without, inter alia, an opportunity for public review;

Count Nine: The Detailed Guidance is contrary to the Surface Mining Control and Reclamation Act (“SMCRA”) inasmuch as it lacked public notice and comment prior to implementation and interferes with SMCRA’s grant of primary regulatory authority to the Office of Surface Mining (“OSM”) and the primacy states3;

Count Ten: The EC Process, MCIR Assessment, and the Detailed Guidance are, inter alia, unlawful, arbitrary, capricious, and an abuse of discretion; and

Count Eleven: The EC Process, MCIR Assessment, and Detailed Guidance are ultra vires.

Based upon the claims alleged, NMA seeks, inter alia,

(1) a declaration that EPA and the Corps violated the APA in

3 The term “primacy states” refers to those states that are authorized to operate their own surface mining control and reclamation programs. See Ohio River Valley Environmental Coalition, Inc. v. Kempthorne,

(4th Cir. 2006) (“Once the Secretary [of the Interior] approves a state program, the State has achieved ‘primacy’ and has exclusive jurisdiction to regulate surface coal mining within its borders.”); Molinary v. Powell Mountain Coal Co., Inc.,

(4th Cir. 1997).

5 issuing and implementing the EC Process, the MCIR Assessment, and

the Detailed Guidance; (2) a declaration that those three

documents violate federal laws including the CWA, NEPA, and

SMCRA; (3) a declaration that EPA has exceeded its statutory

authority in the Section 404 permitting process, (4) vacatur of

the EC Process, MCIR Assessment, and Detailed Guidance; (5) an

injunction prohibiting the enforcement, application, or

implementation of the EC Process, MCIR Assessment, and Detailed

Guidance; and (6) directions to the Corps to process all pending

Section 404 permit applications in accordance with the governing

procedures in existence prior to EPA’s alleged extra-statutory

and regulatory actions. The NMA action was assigned to the

Honorable Reggie B. Walton, United States District Judge.

On September 17, 2010, NMA moved for a preliminary

injunction. On September 27, 2010, defendants moved to dismiss

based upon a variety of grounds. On October 13, 2010, the

following putative intervenors sought to join the NMA action as

defendants: Sierra Club, West Virginia Highlands Conservancy,

Coal River Mountain Watch, Ohio Valley Environmental

Coalition, Kentuckians for the Commonwealth, Southern

Appalachian Mountain Stewards, and Statewide Organizing for

Community Empowerment. NMA opposed the request. On November 8,

2010, Judge Walton granted the intervention request in a brief

6 order, noting that the intervenors had “demonstrated cognizable

interests that may be impacted by the outcome of this case, and

have shown that these interests will not be adequately protected

by the federal defendant[s].” National Mining Assoc. v. Jackson,

No. 10-1220, slip op. at 2 (D.D.C. Nov. 8, 2010).

B. Litigation in the Eastern District of Kentucky

On August 10, 2010, Gorman Company, LLC, Kycoga

Company, LLC, Black Gold Sales, Inc., Kentucky Union Company, and

Hazard Coal Corporation instituted an action against the same

defendants named herein in the Eastern District of Kentucky

(“Gorman action”). Defendants moved to transfer the Gorman

action to the D.C. District Court for consolidation with the NMA

action. Plaintiffs opposed the request.

On December 9, 2010, the Honorable Gregory F. Van

Tatenhove, United States District Judge, stayed the Gorman

action, noting it “name[d] the same defendants and challenge[d]

the same regulatory” practices as the NMA action. Gorman Co.,

LLC v. United States Environ. Protec. Agency, No. 10-228, slip

op. at 3 (E.D. Ky. Dec. 9, 2010) (“Indeed, the eleven counts

contained in the NMA’s complaint and the instant Complaint are

identical, and the same relief is sought.”). Judge Tatenhove

7 held the transfer decision in abeyance pending Judge Walton’s

disposition of defendants’ motion to dismiss the NMA action. Id.

at 4 (noting “it makes sense . . . to reserve fully considering

and ruling on the Motion to Transfer until after the motion to

dismiss in the . . . [NMA] action has been resolved.”).

On October 18, 2010, the Kentucky Coal Association

(“KCA”) instituted an action in the Eastern District of Kentucky

against the United States Environmental Protection Agency and its

administrator, Lisa P. Jackson, both of whom are named as

defendants herein (“KCA action”). That same day the Commonwealth

of Kentucky moved to intervene as a plaintiff. On October 20,

2010, the Honorable Amul R. Thapar, United States District Judge,

granted intervention. On November 12, 2010, Judge Thapar granted

a similar intervention request filed by the City of Pikeville,

Kentucky.

On December 6, 2010, Judge Thapar transferred the KCA

action to Judge Tatenhove. Noting that the KCA action contained

only two counts, Judge Tatenhove nevertheless observed that those

claims were the “same or similar” to counts appearing in the

eleven-count NMA action. Kentucky Coal Ass’n v. United States

Environ. Protec. Agency, No. 10-125, slip op. at 3 (E.D. Ky. Dec.

9, 2010). On December 9, 2010, Judge Tatenhove thus stayed the

8 KCA action. Id., slip op. at 4 (“As a result, it makes sense for

this Court to reserve fully considering and ruling on the Motion

to Transfer . . . until after the motion to dismiss in the D.C.

action has been resolved.”).

C. Litigation in the Southern District of West Virginia

On October 6, 2010, plaintiffs, the West Virginia

Department of Environmental Protection (“DEP”), and its cabinet

secretary, Randy C. Huffman, instituted an action in this court

(“DEP action”). It names the same defendants as those found in

the NMA action. An analysis of the complaints in DEP and NMA

actions reveal further similarities:

NMA COMPLAINT DEP COMPLAINT COMPARISON Count One Count One Materially Identical

Count Two No Analogue Count N/A

Count Three Count Two Materially Identical

Count Four Count Three Materially Identical

Count Five No Analogue Count N/A

Count Six Count Four Overlapping and Alike

Count Seven Count Five Overlapping and Alike

Count Eight Count Six Overlapping and Alike

Count Nine Count Seven Materially Identical

Count Ten No Analogue Count N/A

Count Eleven No Analogue Count N/A

9 Additionally, the relief sought in the DEP and NMA complaints

overlaps almost entirely. (Compare NMA Compl. at 39-40, with DEP

Compl. at 50-51).

On October 27, 2010, defendants moved pursuant to

(a) to transfer this action to the D.C. District

Court for consolidation with the NMA action. Defendants assert

transfer and consolidation is warranted “because all of the

complaints challenge the same agency actions, they raise common

questions of law and fact, they assert identical claims, and they

seek identical relief.” (Memo. in Supp. at 2). Defendants note

in particular that the DEP action “challenges . . . [efforts] of

federal agencies headquartered in the District of Columbia, and

challenges documents that were executed in the District of

Columbia.” (Id. at 3). They also assert that “[v]irtually all

of the operative facts alleged in the [DEP] Complaint occurred in

the District of Columbia.” (Id.)

Plaintiffs oppose the transfer request. They contend

that the DEP action challenges not only certain documents

promulgated by EPA but also the application of those documents to

West Virginia permit requests and programs by EPA and Corps

regional offices, with numerous associated meetings and program

reviews occurring in Charleston, West Virginia. They also state

10 that the EC Process and the Detailed Guidance “are only the

starting point” for their claims, which they assert are primarily

intended to “defend the State’s mining regulatory programs and

its primary right to interpret its own narrative water quality

standard” among other things. (Pls.’ Resp. at 3). They

additionally assert, inter alia, as follows: (1) plaintiffs are

located in Charleston, (2) a substantial part of the property to

be mined is found in this district, (3) transfer would prevent a

sovereign state from litigating within its own borders a

controversy involving its programs, policies, and standards; and

(4) plaintiffs’ forum choice is entitled to significant weight.

Plaintiffs further assert that having to litigate this action in

the D.C. District Court “would place an onerous administrative

and financial burden on” them. (Id. at 11). They offer no

details as to why that is the case.

II.

A. The Standards Governing a Section 1404(a) Transfer

Section 1404(a) governs the transfer request. It

provides pertinently as follows:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any

11 civil action to any other district . . . where it might have been brought.

A section 1404(a) transfer is dependent upon the “weigh[ing]

. . . [of] a number of case-specific factors.” Stewart

Organization, Inc. v. Ricoh Corp.,

(1988).

“Factors commonly considered . . . include: (1) ease of access to

sources of proof; (2) the convenience of parties and witnesses;

(3) the cost of obtaining the attendance of witnesses; (4) the

availability of compulsory process; (5) the possibility of a

view; (6) the interest in having local controversies decided at

home; and (7) the interests of justice.” AFA Enters., Inc. v.

American States Ins. Co.,

(S.D. W. Va.

1994) (citing Gulf Oil Corp. v. Gilbert,

(1947)).

The party requesting transfer shoulders a significant

burden. Id. at 909 (citations omitted). One reason is that the

plaintiff’s forum selection is accorded considerable weight.

Id.; Collins v. Straight, Inc.,

(4th Cir.

1984). The Supreme Court long ago observed that “unless the

balance is strongly in favor of the defendant, the plaintiff's

choice of forum should rarely be disturbed.” Gilbert,

.

12 The Supreme Court has, however, suggested at least one

tipping factor favoring transfer that would suffice to overcome

plaintiff’s choice: “To permit a situation in which two cases

involving precisely the same issues are simultaneously pending in

different District Courts leads to the wastefulness of time,

energy and money that . . . [§] 1404(a) was designed to prevent.”

Continental Grain Co. v. The FBL-585,

(1960).

The rule in Continental Grain has been restated more recently.

See also Ferens v. John Deere Co.,

(1990)

(noting that Supreme Court precedent had “made quite clear” that

it is a waste of time, money, and resources to allow two cases

with the same issues to pend simultaneously in different

districts).

B. Analysis

Plaintiffs concede that they could have permissibly

filed the DEP action in the D.C. District Court. It is thus

apparent that transfer is a possibility. Most of the foregoing

factors, though, are inapt. The first five are aimed at

avoiding, or ameliorating, the time and expense devoted to the

discovery and trial processes. Defendants adroitly observe that

these five considerations are neutral inasmuch as the judicial

13 inquiry in these cases will be based exclusively on the

administrative record. While plaintiffs are unwilling to concede

the point, they venture only that “some sort of judicial fact-

finding” will be necessary. (Pls.’ Memo. in Oppos. at 15 n.8).

Their similar prognostication that “there may be other factors

justifying extra-record discovery” is equally imprecise. (Id.)

The court thus deems the first five factors to be near neutral.

Plaintiffs devote a great deal of discussion to the

supposed interest in having local controversies decided at home.

For example, their response is littered with references to

meetings, comments, and discussions that have taken place in or

near Charleston as a part of the regulatory process. The

recitation resembles a contacts analysis typically encountered in

the personal jurisdiction domain. They also discuss how the

challenged memoranda have impacted West Virginia public policies

respecting water quality and mining activities.4

4 A related contention offered by plaintiffs merits brief mention. They suggest that consolidation of the NMA, Gorman, and KCA actions with this case would be inappropriate because “this case was brought by a State and its administrative agency to defend the State’s programs, public policies, and water quality standards, which are unique to the State of West Virginia.” (Pls.’ Memo. in Oppos. at 17). As noted, the Commonwealth has successfully intervened in the KCA action. Conceding that fact in a footnote, plaintiffs nevertheless contend that the differences between the DEP action and Commonwealth’s intervention complaint would militate against consolidation. As observed further in, even if formal (continued...)

14 These assertions are not without some weight but they

are unduly restrictive. Irrespective of where the parties have

met in the past, or the particular effects that defendants’

policies have had in West Virginia, those prosecuting the NMA,

Gorman, KCA, and DEP actions have all targeted, inter alia, the

Detailed Guidance and EC Process. If those central memoranda are

vacated by judicial decree, be it in the D.C. District Court,

this court, or some other, their effects on West Virginia’s water

quality and surface mining policies are practically at an end

absent a successful appeal. This factor is thus also properly

regarded as neutral, or at least insubstantial.

The weighing process thus resolves to an analysis of

the significance of plaintiffs’ forum choice as compared to the

interests of justice relating in particular to the coordinated

disposition of nearly identical litigation pending in different

districts.5 Plaintiffs’ forum choice, weighing heavy in the

balance, requires no further discussion.

4 (...continued) consolidation is deemed inappropriate, coordinated treatment by a single district judge avoids many of the problems presented by the alternative. 5 The court recognizes, and has taken into consideration, the fact that the four pending actions are not identical. Given their overwhelming similarities to one another, however, along with the nearly identical relief sought, the Supreme Court’s observations in Continental Grain unmistakably apply.

15 There are, however, very substantial considerations in

counterbalance. They involve economy, the integrity of the

judicial process, and the need for certainty and finality in the

coalfields. From an economy standpoint, there is obvious value

in having a single district judge superintend the multiple civil

actions spawned by defendants’ policies. Absent transfer, three

judges and their staffs will devote dozens if not hundreds of

hours to properly frame the issues, review substantial briefing

and arguments at different points, and carefully craft opinions

addressing complex subject matter.6 It bears noting that these

multiplicitous proceedings account for work performed only in the

district court. Three additional appellate layers are likely to

materialize at some point, presenting another undesirable effect

discussed further in. Transfer is an easy solution to these

unwelcome results.

Regarding the integrity of the judicial process, one

would expect the defendants in the three different districts to

pursue a unified approach. The same is not as easily said for

their plaintiff counterparts. There is no overlap among the

respected counsel on the plaintiffs’ side, even in the Gorman and

6 This observation is evident in light of the first substantial ruling entered in the four actions. Judge Walton’s well-considered and thorough memorandum opinion resolving the motions to dismiss and for a preliminary injunction spans 31 pages.

16 KCA actions in Kentucky. It seems certain then that all of these

different lawyers may pursue differing litigation strategies,

perhaps resulting in arguments and authorities being presented to

one or some of the district judges but not their judicial

counterpart(s). If those variances end up impacting the

decisional law, both the judicial process and settled notions of

fairness will suffer. That outcome, too, can easily be avoided

by transfer.

Third, and of greatest significance for all concerned

and the public interest, is the need for certainty and finality

in the coalfields. It seems unlikely, but possible, that the

NMA, DEP, Gorman, and KCA actions could be decided by the three

district judges in the same manner and on the same grounds. The

timing of those decisions may differ substantially, however,

owing to the filing of the cases at different times, the entry of

differing scheduling orders, and the issues in each maturing at

their own pace, with procedural issues arising in perhaps some of

the cases but not others.7 Many of these concerns can be

alleviated by a single district judge consolidating the cases, or

at least coordinating them in some methodical fashion.

7 While defendants moved to dismiss the NMA action and NMA moved for a preliminary injunction, no similar motions have been filed at this time in either this district or in Kentucky.

17 As noted, the appellate layer poses its own problems if

transfer does not occur. For example, the EC Process applies to

Section 404 permit applications in six states falling under the

jurisdiction of four different United States Courts of Appeal.

Assuming compatible results are reached in the district courts

where these four actions currently pend, the appellate process

offers but one more opportunity for disharmony and differing

decisional time lines. It is difficult to comprehend the

problems that might arise for the federal and state regulators,

the industry, and potentially the citizenry and the markets, if

different rules are deemed to apply in different circuits. Once

again, transfer eliminates that problem. It offers the best

chance for uniformity, certainty, and finality (with dispatch)

for these weighty issues impacting the nation’s energy supply.8

8 It is also worth noting the peculiar expertise in administrative law possessed by both the D.C. District Court and the United States Court of Appeals for the District of Columbia Circuit. See, e.g., Verizon California Inc. v. Peevey,

(9th Cir. 2005) (Bea, J., concurring) (“The D.C. Circuit . . . has particular expertise in administrative law . . . .”); Springdale Memorial Hosp. Ass'n, Inc. v. Bowen,

(8th Cir. 1987) (Heaney, Lay, and McMillian, JJ., dissenting from the denial of a pet. for reh’g en banc) (noting the apparent benefit of “call[ing] upon the expertise of the District of Columbia Circuit to provide decisions in cases in administrative law which, unless reversed by the Supreme Court, are expected to have a national impact.”); Seema Shah and Patricia Zettler, From a Constitutional Right to a Policy of Exceptions: Abigail Alliance and the Future of Access to Experimental Therapy, 10 Yale J. Health Pol'y, L. & Ethics 135, 139 (2010) (“The D.C. Circuit is widely recognized as having special expertise on matters of administrative law, and the Abigail Alliance opinion is now considered an authoritative (continued...)

18 Based upon the foregoing, the considerable weight of

plaintiffs’ forum choice cannot withstand the confluence of

negative effects likely to result from the DEP action remaining

in this district. The balance is thus struck strongly in favor

of the defendants’ request to transfer. Gilbert,

.

The court, accordingly, ORDERS that defendants’ motion

to transfer be, and it hereby is, granted. It is further ORDERED

that this action be, and it hereby is, transferred to the

District of Columbia District Court for all further proceedings.

The court additionally does not reach the motion to

intervene, deeming it best for that determination to be made in

the transferee court. For example, Judge Walton has previously

imposed joint filing conditions upon those parties to whom he has

granted intervention.

(...continued) 8

judgment on the topic of a constitutional right to access experimental therapies.”). This observation fortifies the potential for certainty and finality that seems so critical for all concerned.

19 The Clerk is requested to transmit this written opinion

and order to all counsel of record and to any unrepresented

parties.

DATED: January 31, 2011

John T. Copenhaver, Jr. United States District Judge

20