ELR Citation: 51 ELR 20111
No(s). 20-35504 (9th Cir. Jun 17, 2021)

The Ninth Circuit, 2-1, affirmed in part and reversed in part dismissal of a challenge to EPA's withdrawal of a previously proposed determination restricting mining operations in part of southwest Alaska's Bristol Bay watershed. A conservation group had argued the withdrawal violated the CWA and EPA's regulations, and that political considerations motivated the Agency to abandon, without adequate explanation, its earlier scientific judgments that mining in the watershed would have unacceptable effects. The district court had dismissed the suit, concluding the withdrawal was unreviewable because it was best characterized as a decision not to take an enforcement action, and because neither the CWA nor EPA's regulations provided a meaningful legal standard for the court to apply. The appellate court found that while the CWA did not contain a meaningful legal standard in its broad grant of discretion to EPA, the Agency's regulations did. It therefore affirmed in part and reversed in part the dismissal, and remanded for further proceedings.