Marquette County Road Commission v. Environmental Protection Agency, et al.

The Administrative Procedure Act (APA) provides for judicial review of any “final agency action for which there is no other adequate remedy[.]” 5 U.S.C. § 704. Moreover, the APA “creates a ‘presumption favoring judicial review of administrative action.’” Sackett v. Envtl. Prot. Agency, 566 U.S. 120, 128 (2012) (citation omitted); U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1816 (2016) (same). Here, the Marquette County Road Commission in Michigan intended to build an important road for the upper peninsula of the state. Because the road would impact wetlands, the Road Commission needed a § 404 Clean Water Act (CWA) discharge permit to do so. After a lengthy and expensive application process, the Road Commission had in hand the necessary permit approval from Michigan, which had authority to approve the permit pursuant to § 404(g)-(j) of the CWA. But before the road building could start, the Environmental Protection Agency (EPA) arbitrarily and capriciously vetoed that permit. This veto left the Road Commission with no alternatives but to either give up on the road or start over and apply for another § 404 permit from the Army Corps of Engineers, a process that costs the average applicant $271,596 and can take 788 days to complete. Rapanos v. United States, 547 U.S. 715, 721 (2006). The question presented by this case is this: Whether an arbitrary and capricious EPA veto of a state-approved CWA § 404 permit, a final agency action that denies the state-approved permit forevermore, and binds all parties, is subject to judicial review under the APA.