Fourth Circuit Affirms Corp of Engineers Decision to Issue Mining Permit

by Katherine Kennedy

On May 15, 2013, Judge Niemeyer of the United States Court of Appeals for the Fourth Circuit affirmed a district court ruling in favor of the U.S Army Corps of Engineers (the Corps) decision to issue a mining permit.  Ohio Valley Envtl. Coalition, Inc. v. U.S. Army Corps of Engineers, 12-1999, 2013 WL 1987234 (4th Cir. 2013). Four environmental groups brought suit to challenge a fill permit issued under Section 404 of the Clean Water Act (CWA). The groups felt that the Corps, in conducting its analysis for the Section 404 permit, “materially misapprehended” the baseline conditions in the relevant watershed, thus corrupting its analysis of the cumulative impact that the mine would have on the streams in the watershed. The groups brought this challenge under the National Environmental Policy Act and Administrative Procedure Act alleging that the Corps acted arbitrarily and capriciously in determining that the valley fill would not have a significant cumulative impact on the water quality in the relevant watershed.

The suit was centered on a proposed surface coal mine adjacent to Reylas Fork (a stream) in Logan County, West Virginia. The Highland Mining Company received a number of permits to allow the project to move forward.  The West Virginia Department of Environmental Protection (WVDEP) issued a permit under the Surface Mining Control and Reclamation Act (SMCRA) to do the mining, finding that the proposed mine would not cause material damage to the hydrologic regime. The WVDEP also issued a water quality certification under Section 401 of the CWA, concluding that the proposed mine would not cause or contribute to violations of the State's EPA-approved water quality standards. Further, the WVDEP issued a National Pollutant Discharge Elimination System (NPDES) permit under Section 402 of the CWA, finding that the proposed sediment pond for the mine would not have significant adverse effects. The Corps also issued a fill permit under Section 404 of the CWA, authorizing Highland Mining to place rock overburden into the adjacent valley of Reylas Fork as part of the mining process. The Corps issued the permit without an environmental impact statement, finding that the fill would not have a substantial cumulative impact on the water quality in the relevant watershed.

Under guidelines issued by the EPA, the Corps could issue a Section 404 permit only after concluding that the mining activity would not cause or contribute to violations of the State's water-quality standards or to the significant degradation of waters of the United States. During notice and comment, the EPA warned that "the direct and cumulative impacts from this and future mines will be persistent and permanent and cannot be sufficiently or effectively compensated through the proposed mitigation." After receiving EPA's comments, Highland Mining requested that the Corps stay its consideration of the permit application until Highland Mining had an opportunity to allay the EPA's concerns. Thereafter, the Corps, the EPA, and Highland Mining consulted each other and agreed to modifications to the conditions of the permit. After the Corps released its Combined Decision Document and Section 404 permit, environmental groups brought suit to challenge the permit and decisions supporting the permit.

The Circuit Court held that the Corps did not misapprehend the baseline conditions for the permit. After lengthy discussion of the Corps’ data and analysis, the court reasoned that the cumulative analysis  considered data not only from the impact area, but also from other tributaries and that the Corps considered the relevant factors, evaluating both the impact site and the entire watershed. Only after this evaluation did the Corps reach its informed judgment as to the baseline conditions.

For its second argument, the Environmental Coalition challenged the Corps' finding that the cumulative insignificance was "arbitrary and capricious." The environmental groups felt that this was because the Corps irrationally dismissed the strong correlation between surface coal mining activities and downstream biological impairment. Under the Coalition's reading of the Combined Decision Document, the Corps failed to take a "hard look" at potential environmental consequences because the Document is "not supported by any reasoned analysis of, or expert opinion about, the science on conductivity and stream impairment."

The court also held against the environmental groups on this challenge. The court was persuaded by the measures the Corps adopted as conditions of its Section 404 permit. These special conditions incorporated a series of best management practices designed to minimize increases in conductivity and total dissolved solids associated with the Highland Mining’s mining activities. The conditions also required that if the monitoring showed that the mining activities were resulting in adverse impacts to water quality, Highland Mining would be required to initiate remedial actions, provide additional water quality-based mitigation under the terms of the permit, or both. Since all of these conditions were incorporated as conditions of the Section 404 permit, the court held that the Corps’ finding to continue the project was not arbitrary and capricious. The court found that this process was significant and since it resulted in a two-year delay of the issuance of the Section 404 permit, the decision was not arbitrary and capricious.

The court also held that the Corps did take a hard look at the Environmental Coalition's concerns. Specifically, the Coalition stated that the Corps failed to take a hard look at conductivity and stream impairment. However, the court held that the record amply shows that the Corps grappled with the issue extensively, rationally finding that (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit and (2) the compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.

The court stated in dicta that the disagreement between the Coalition and the Corps can be reduced to no more than a substantive disagreement. The court notes that it is limited, and we may not "use review of an agency's environmental analysis as a guise for second-guessing substantive decisions committed to the discretion of the agency." Thus, the court held that the Corps' predictive judgment in this case was based on facts and recommendations, adduced during a lengthy consultation between the Corps, Highland Mining, the EPA, and the WVDEP, and we conclude that this process satisfies NEPA's procedural requirement to take a "hard look."

8th Annual Homeland Security Law Institute

The ABA Section of Administrative Law and Regulatory Practice will hold the 8th Annual Homeland Security Law Institute June 20-21, 2013 at the Capital Hilton in Washington, DC. Register online here.

This 2-day program features numerous panels and presentations on topics such as export control, transportation security, immigration enforcement, money laundering, and cyber security. The full brochure can be found online here. 13 CLE credits have been requested.

Pre-program workshops are also offered on Wednesday, June 19 at the law firm of Greenberg Traurif LLP, covering "Careers in Homeland Security" and "Homeland Security Law & Policy 101." A faculty reception will follow.

We hope to see you there!

NEH Requests Comment On Age Discrimination Act Regulations

by Shannon Allen

The National Endowment for the Humanities (“NEH”) recently proposed rules regarding complying with the Age Discrimination Act of 1975 (“Age Act”) and incorporating “general, government-wide age discrimination regulations” by the Department of Health and Human Services (“HHS”).

The Age Act prohibits discrimination on the basis of age in programs and activities receiving Federal financial assistance.  Under the Age Act, recipients may not exclude, deny, or limit services to, or otherwise discriminate against, persons on the basis of age.  Agencies are required to publish agency-specific regulations implementing the Age Act.

NEH’s initial agency-specific regulations were approved by HHS in 1985, but were not published. The proposal noted that “[s]ince such a significant amount of time has passed since NEH initially drafted the proposed rule, and because regulatory development guidelines have changed over the years, NEH determined that it would be best to begin the regulatory process anew by drafting new agency-specific age discrimination regulations.”

The NEH’s newly proposed rules are designed to “guide the actions of recipients of Federal financial assistance from NEH . . . .”

The regulations are divided into four parts:

• Subpart A – General: Explains the purpose of the regulations and defines terms (e.g. recipient, normal operation, and statutory objective).
• Subpart B – Standards for Determining Age Discrimination: Establishes a four-part test for age-based distinctions to satisfy the “normal operation” or “statutory objective,” so recipients can take otherwise prohibited action if the action is based on “reasonable factors other than age.”
• Subpart C – Responsibilities of NEH Recipients: Ensures recipient (and sub-recipient) programs and activities are in compliance.
• Subpart D – Investigation, Conciliation, and Enforcement Procedures: Establishes mediation (within 60 days) as the first step in the complaint process and permits NEH to disburse funds to an appropriate alternate recipient.

Written comments must be postmarked and electronic comments must be submitted on or before July 15, 2013.  Interested parties should reference “Age Discrimination Act Regulations” on correspondence and may submit comments to the attention of Gina Raimond by any of the following methods:

• Email to gencounsel@neh.gov
• Fax to 202-606-8600
• Postal mail to: Gina Raimond, Attorney Advisor, Office of the General Counsel, National Endowment for the Humanities, 1100 Pennsylvania Ave. NW., Room 529, Washington, DC 20506.

D.C. Circuit Invalidates NLRB Posting Rule

by Lynn White

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia invalidated a National Labor Relations Board (NLRB) posting rule notifying employees of their rights under the National Labor Relations Act (the Act).  Noncompliance with the requirement could have been considered an unfair labor practice.  The National Association of Manufacturers and other trade associations challenged the rule in district court asserting that the rule violated the Act and the First Amendment of the Constitution.  The district court ruled that while the NLRB had the authority to issue the rule, some of its provisions were invalid. 

On appeal, the Circuit Court first determined that its recent decision invalidating President Obama’s recess appointments to the NLRB had no impact on the validity of the final rule in question.  The court then focused its analysis on whether the final rule violates Section 8(c) of the Act, which states that speech shall not constitute an unfair labor practice unless it includes coercion.  The court held that the rule violated Section 8(c) since freedom of speech includes the right not to disseminate information (i.e. the NLRB poster) and failure to post would be considered an unfair labor practice.  The court declined to address whether the NLRB had the authority to issue the rule as the plaintiff’s asserted. 

In a concurring opinion, Judges Karen LeCraft Henderson and Janice Rogers Brown stated that the NLRB had no authority to issue the rule since it failed to establish why the poster was necessary to carry out the Act.  The NLRB’s assertion that the rule was necessary to educate uninformed employees of their rights was unpersuasive.   Judge Henderson further noted that Congress intended for enforcement of the Act to be remedial, and not “prophylactic.” 

The National Association of Manufacturers applauded the decision.  The AFL-CIO issued a statement condemning the decision, noting that it would call into question a number of federal posting requirements. 

Meet Lauren Khouri, Aspiring Labor and Employment Administrative Lawyer

by Nina Hart

Meet Lauren Khouri, third-year law student at American University Washington College of Law and Notice and Comment contributor.  Below, she shares her experiences and enthusiasm for administrative law.

1.   Where do you attend law school?  What led you to attend law school? What are your plans for after law school?

I am a third-year law student at American University Washington College of Law, graduating this May. I went to law school because I have always wanted to work on improving equal opportunity in our country. In my opinion, the law provides a uniquely effective tool for protecting and enhancing our individual civil rights. After law school, I hope to litigate cases in the education or labor and employment law field.

 2.  What experiences with administrative or regulatory law have you had?

I have experience with both local and federal administrative agencies. While working with the U.S. Department of Justice in the Tax Division, I interacted frequently with the IRS. Now, I am working with the National Partnership for Women & Families, a non-profit, nonpartisan advocacy organization that promotes fairness in the workplace, among other issues, and helps men and women balance the demands of work and family. For this organization, I am researching regulations and agency decisions of the Department of Labor, NLRB, and EEOC. On the local level, I spent time working within the District of Columbia’s regulatory system while serving in the General Counsel’s Office of the D.C. Public Schools.

3.  How did you become interested in studying or pursuing a career in administrative law?

I first became interested in administrative law while working with the Labor & Employment Law Forum at American University. As I read articles for publication, I realized how important and pervasive the administrative law field is. Since then, I see how significant administrative law is in every place I work.

4.  Based on your experiences thus far, what do you perceive to be challenges facing administrative law practitioners?

From what I have seen, there still seems to be a power struggle between Congress, agencies, and the courts. The weight of authority given to regulations by the federal courts and the discretion delegated to agencies from Congress will always be a point of dispute. This is even more important during a time where Congress and the courts are debating the constitutionality of agency appointments.

5.  For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

I am a strong supporter of legal blogs. The best way to familiarize yourself with a new body of law is to find the most reputable blogs in the area and read them every day. Blogs offer a general overview of the important legal precedent and stay up-to-date on the cutting-edge developments in the field. Legal blogs are also one of the few places where you can read about district court cases and smaller legal issues that do not make it onto the front page of the newspaper. It is informative, and also fun, to know about the legal issues that are happening day-to-day on the ground.

6.  From a law student’s perspective, how would you characterize the dialogue between academics, students, and practitioners in the area of administrative law?

In general, I believe the dialogue between students, academics, and practitioners should always increase. For students, there is no better way to learn then to speak with people who are out there in the field practicing what they may be interested in doing. Academics also provide useful insight as to recent developments in the law and trends that are important to pay attention to. In the administrative law field, the dialogue between students, academics, and practitioners is even more important. In my opinion, administrative law is a subject that you do not truly learn until you have seen the process in action. The best way to do that, as a student, is to talk to those that are doing it.

7.  Outside of the law, what are your favorite activities or hobbies?

When I am not inside a library or coffee shop, I love to be outside exploring D.C. or experimenting with my new affinity for cooking!

Supervisory Attorney Position at Merit Systems Protection Board

The U.S. Merit Systems Protection Board (MSPB is currently accepting applications for a Supervisory Attorney-Advisor (General) (Associate Director) position in Washington, D.C.  The deadline for applying is May 15, 2013 or, once the first 100 applications are received. 

The MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies. In addition, MSPB reviews significant actions by the Office of Personnel Management to assess the degree to which those actions may impact merit.

The Associate Director is responsible for directing the work of several attorneys engaged in doing legal research on assigned cases and developing decision documents for the Board to consider. This includes reviewing, assessing, and making preliminary decisions during initial case screening. The Associate Director also reviews case decision documents completed by staff to discuss additional research or revision, if necessary. The position requires participation in an array of human resource functions including interviewing, recruiting, and selecting new attorneys. The Associate Director carries out a variety of special assignments for the Director of OAC, including oral presentations, legal research, and writing of professional papers on matters of law. Finally, the Associate Director represents the office and the agency at professional seminars or conferences, and responds to requests from other offices to comment on documents and studies that they have prepared.

The MSPB is seeking a candidate with superior law student credentials plus four years of professional experience.  The candidates should also have at least one year of experience at a level of difficulty comparable to the GS-14 level in the Federal service; a professional law degree (LL.B or J.D.) plus five years of professional legal experience, at least one year of which must be at a level of difficulty comparable to the GS-14 level in the Federal service; or Second professional law degree(LL.M) plus four years of professional legal experience, at least one year of which must be at a level of difficulty comparable to the GS-14 level in the Federal service.

Agencies Focusing on Employer Wellness Programs

by Lauren Khouri

Workplace wellness programs have recently become very popular with both employers and employees. In a study sponsored by the U.S. Department of Labor, 92 percent of employers with 200 or more employees reportedly offered a wellness program in 2009. Wellness programs are designed to improve the health of employees and therefore lower the cost of health insurance for employers. Examples of wellness programs include no-tobacco policies, health incentive payments and gift cards, discounted or reimbursed gym memberships, and free health coaching. Certain wellness programs also provide for discounted insurance premiums based on meeting designated health standards. The same policies typically also apply surcharges for those who do not meet those standards. The hope, for employers, is that wellness programs will improve the overall health of their employees, which in turn brings down the overall cost of health care.

The debate between employer- and employee-advocates regarding whether wellness programs are helpful or hurtful to the health insurance market recently intensified.  Participatory wellness programs, like discounted gym memberships, receive support from both sides of the issue. However, health-contingent wellness plans, where insurance premiums are based on health assessments, are vigorously debated. Employee advocates argue that health-contingent plans encourage discrimination based on health status, which can disproportionately affect minorities, women, and the aging population.

On May 3, 2013, the Internal Revenue Service (IRS) published a proposed rule regarding the Affordable Care Act (ACA) health insurance premium tax credit. Under the ACA, beginning in 2014, an employer must provide minimum health care coverage for its full-time employees. If it does not, the employer will pay an excise tax penalty. The proposed regulations tackle what qualifies as “minimum health care coverage” under the ACA. The proposed rule would not include wellness programs as part of the health care coverage package employers are required to provide. It does, however, create an exception for wellness programs that target smoking cessation.  The proposed regulation would not address the potential for discrimination, but it would guarantee that employers are providing adequate health care coverage, outside of what is provided through the workplace wellness plan.

The IRS’s proposed regulation comes one week before the May 8, 2013 Equal Employment Opportunity Commission (EEOC) meeting on the treatment of wellness programs under federal law. The hearing focused on how wellness programs interact with the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other relevant statutes the EEOC works with.  The following witnesses testified on both sides of the issue:

• Christopher Kuczynski, Acting Associate Legal Counsel, EEOC
• Judith Lichtman, Senior Advisor, National Partnership for Women and Families
• Jennifer Mathis, Deputy Legal Director, Bazelon Center for Mental Health, on behalf of the Consortium for Citizens with Disabilities
• Amy Moore, Partner, Covington and Burling LLP, on behalf of the ERISA Industry Committee (ERIC)
• Karen Pollitz, Senior Fellow, Kaiser Family Foundation
• Leslie Silverman, Partner, Proskauer Rose, LLP
• Tami Simon, Managing Director, Knowledge Resource Center, Buck Consultants, on behalf of the American Benefits Council (ABC)

The new IRS rules are open to revision and comments, which are due by July 2, 2013. To submit a comment on the proposed rule online, visit here.

Lauren Khouri is a third-year law student at American University Washington College of Law.