ELR Citation: 41 ELR 20152
No(s). s. 10-13613, -13830 (11th Cir. Apr 8, 2011)

The Eleventh Circuit vacated a lower court decision remanding a permit issued by the U.S. Army Corps of Engineers back to the agency and enjoining a mining company from conducting operations approved in that permit. The lower court concluded the permit's issuance did not comply with the requirements of the CWA and that the environmental group challenging the permit had demonstrated it was entitled to preliminary injunctive relief. But the lower court's remand of the permit to the Corps was improper because it was effectively a final judgment on the merits. The lower court based the entry of the preliminary injunction entirely on EPA letters that expressed concerns with the permit and failed to apply the arbitrary and capricious standard in evaluating the Corps' practicable alternatives analysis. While the EPA letters may prove to be helpful in evaluating the ultimate merits of the CWA claim, the full record will need to be analyzed through the deferential lens mandated by the APA to determine whether the Corps came to a rational conclusion. The court therefore vacated the preliminary injunction, set aside the remand to the Corps, and remanded the case to the lower court for reconsideration.