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Welcome back to The Veto Unravels.
Chapter 2:
UNDERSTANDING ADMINISTRATIVE PROCEDURE LAW
Today I want to answer a question that almost everyone following this story has never had answered clearly.
What actually happens in a federal courtroom on June 25.
There is no jury. There are no witnesses. There is no new evidence. Nobody is testifying about salmon or copper or Alaska land rights.
What is happening on June 25 is something called oral argument before a federal judge on cross motions for summary judgment in an Administrative Procedure Act case. That sounds like a mouthful. Every part of it matters and I am going to explain each piece in plain language.
What Is An APA Case And Why Is This One Different From Other Court Cases
The Administrative Procedure Act is the federal law that governs how government agencies make decisions and how courts review those decisions. It was passed by Congress in 1946, and it is one of the most important laws in the American legal system that most people have never heard of.
Here is the simplest way to understand what an APA case is.
In an ordinary court case, a judge decides what happened. Who did what. Whether the facts support a legal claim. Witnesses testify. Evidence is introduced. The judge or jury weighs everything and reaches a conclusion about the facts.
An APA case is completely different. In an APA case the judge does not decide what happened. The βwhatβ has already been established. In this case, the EPA issued a preemptive veto in January 2023. The judge's job is to decide whether the agency followed the rules when it made its decision. It is really that simple. It is all about βthe howβ. Specifically, how did the EPA come to a decision to invoke a preemptive veto on the Pebble Mine project.
Think of it like a hockey game. A referee makes a controversial call on the ice. In an ordinary court case, you are arguing about whether the call was right or wrong. Did the puck actually cross the line. Was the player actually offside. You are debating the play itself.
In an APA case you are not arguing about the play (what happened) at all. You are arguing about something more fundamental. Did the referee (EPA) have the authority to make that call in the first place. And when the referee (EPA) made it did the referee (EPA) follow the official rulebook of the game or were the rules stretched.
That is exactly what this case is. The Biden EPA made a call in January 2023. It issued a preemptive veto of the Pebble Mine. The plaintiffs are not primarily arguing the call was wrong on the science. The plaintiffs are arguing that the referee (EPA) exceeded its authority and did not follow the rulebook when making it.
And the rulebook in this case has two parts. The Clean Water Act written by Congress. And the Administrative Procedure Act governing how agencies must behave.
This is the first and only time the Biden EPA's 2023 preemptive veto has ever been challenged in court. Northern Dynasty PLP the State of Alaska and the Iliamna Native Corporations filed their lawsuits in 2024. Judge Gleason is the first judge in history to review whether what the Biden EPA did in January 2023 was lawful. That matters enormously as I will explain shortly.
What Is The Biden Veto And What Documents Are Being Reviewed
Let me make sure every reader understands exactly what this case is about before we go any further.
In January 2023 the Biden EPA issued what is called a Final Determination under Section 404c of the Clean Water Act. To be crystal clear, this was the preemptive veto of the Pebble Mine project. Preemptive means EPA issued it before PLP ever filed a complete permit application. Before the normal permitting process was finished. Before PLP had formally designated any specific disposal sites. It was the first and only preemptive veto in the fifty-year history of this law.
Along with the Final Determination the 2023 Biden EPA also published a 966-page document called the Response to Comments. That document contains EPA's official responses to every legal scientific and factual argument raised against the veto during the public comment period.
I want to stop here and make sure NAK Nation understands just how important these two documents are. They are not background reading. They are the foundation of this entire legal case.
The Final Determination is the Biden EPA's official legal justification for issuing the veto. Every argument the EPA made. Every legal standard it applied. Every factual conclusion it reached. It is all in that document.
Arguably, these two documents are the most important documents in this entire case. They are the dividing line between truth and deception. If you do not understand these documents, you do not understand the case. It is that simple. Every argument, every violation, every contradiction, and every act of misconduct exposed in this fight traces directly back to what is written in these pages.
Think of these documents as the foundation of a skyscraper: if the foundation is corrupt, cracked, or deliberately concealed, everything built on top of it becomes unstable. That is exactly why these documents matter. They are the foundation upon which this entire case stands or falls.
When Judge Gleason asks whether the Biden EPA followed the law she is measuring what EPA said and did in the Final Determination against the legal standards the Clean Water Act and the Supreme Court require.
The Response to Comments document is equally important and, in some ways, even more revealing. It is the document where EPA responded to every challenge raised during the public comment period including the specific legal arguments that PLP and others made against the veto before it was even issued. When challengers pointed out legal problems, EPA had a chance to address them.
What EPA wrote in response to those challenges and what it chose not to address are both analytically significant.
Some of the most important admissions in this entire case appear in that 966-page document. Admissions we will examine closely in Chapters 5 and 6.
Together the Final Determination and the Response to Comments are the administrative record at the heart of this lawsuit. They are the evidence Judge Gleason is working from. They represent everything the Biden EPA said and did when it issued the veto. And critically they are fixed evidence that are frozen in time. They cannot be altered or changed. They cannot be supplemented. There is no do over. What is in those documents is what EPA has to defend. And what is in those documents is what Judge Gleason will be measuring against the law.
The Clean Water Act Is Her Guide But Through A Completely Different Lens
Judge Gleason is not making this decision based on her personal views about mining or salmon or Alaska development. She is making it based on what the law actually says.
The primary legal text she will be working from is the Clean Water Act. Specifically, Section 404c which is the provision that gave EPA the authority to issue the veto in the first place.
Section 404c uses specific words. It authorizes EPA to veto a permit when the discharge of materials will have:
"unacceptable adverse effects on fishery areas including spawning and breeding areas"
Those words are not suggestions. They are the legal boundary of EPA's authority. Every single word in that phrase matters. What fishery areas means. What spawning and breeding areas mean. What unacceptable adverse effects means. What will have means.
Judge Gleason must read those words carefully, apply every available tool of legal interpretation and determine what they actually authorize. She is not asking whether EPA's environmental concerns were sincere. She is asking whether the specific words Congress wrote in the Clean Water Act authorized the EPA to do what it did.
This distinction is critical. The Clean Water Act is the official rulebook. Judge Gleason is the senior referee reviewing whether the agency followed it.
BUTβ¦β¦β¦here is what makes this case unlike anything that has come before it. Judge Gleason is reading the Clean Water Act through a new lens that did not exist when the Biden EPA issued the veto.
Two Supreme Court decisions handed down after January 2023 fundamentally changed how courts must interpret and apply that statute. And because this is the first time the veto has ever been challenged in court it is also the first time it is being examined under these new legal standards.
The Biden EPA never had to defend its veto under these rulings. It issued the veto before they existed. Now for the first time a court is reviewing that veto using legal tools the agency never anticipated and never designed its veto to survive.
The Two Supreme Court Rulings That Changed Everything And Why Their Timing Is Critical
This is the part of the story that most retail investors following NAK have not fully absorbed. And it is arguably the most important analytical point in the entire series.
The Biden EPA issued its preemptive veto in January 2023.
Just four months later in May 2023 the Supreme Court decided Sackett v EPA unanimously. Nine to zero. Every single justice agreed. This ruling significantly narrowed which wetlands and waterways qualify as protected waters under the Clean Water Act. It eliminated the broad ecological connectivity theory EPA had been using to claim jurisdiction over vast areas of wetlands and replaced it with a strict requirement.
The government must now prove a continuous surface connection between a wetland and a relatively permanent water body for each specific water feature individually. Feature by feature. Not generally. Not approximately. Each one specifically.
The Biden EPA issued its veto under the rules in the old rulebook. The old rules no longer exist.
One year later in June 2024 the Supreme Court decided Loper Bright Enterprises v Raimondo. This ruling eliminated something called Chevron deference which had existed for forty years. Under Chevron deference courts were required to defer to an agency's interpretation of ambiguous statutes as long as that interpretation was reasonable. In plain language that meant agencies like EPA could stretch the meaning of words in the Clean Water Act and courts would generally accept it.
Loper Bright eliminated that deference entirely. Courts must now independently determine the best reading of every statutory term. Not a reasonable reading. The best reading.
The Supreme Court stated this explicitly in its own majority opinion.
"It therefore makes no sense to speak of a permissible interpretation that is not the one the court after applying all relevant interpretive tools concludes is best. In the business of statutory interpretation if it is not the best it is not permissible."
Read that again slowly. If it is not the best reading of the statute it is not permissible. Full stop.
The Biden EPA issued its veto in January 2023 before either of these Supreme Court decisions existed. It built the entire legal foundation of the veto on rules that the Supreme Court subsequently eliminated.
1.The significant nexus test for jurisdiction that Sackett abolished.
2.The broad deference to agency interpretation that Loper Bright removed.
This veto has never been challenged in court before. This is the first time. Which means this is also the first time any court has ever examined this veto through the lens of Sackett and Loper Bright. The Biden EPA designed its veto to survive under a legal framework that no longer exists. It never had to answer for what it did under the framework that actually governs today.
Judge Gleason is not reviewing the veto under the rules of January 2023. She is reviewing it under the rules of here and now in June of 2026. Rules that are fundamentally more demanding. Rules that require her to independently determine the best reading of every key statutory term in the Clean Water Act. Rules that require feature-by-feature jurisdictional proof rather than generalized assertions.
Going back to the hockey analogy. Imagine the referee made a call under one set of rules. The league then changed the rulebook significantly. And now for the first time the call is being reviewed by an official who must apply the new rulebook not the old one.
That is precisely the situation before Judge Gleason on June 25, 2026. And EPA's own DOJ lawyers in their February 2026 court brief made an admission that is now extraordinarily significant under Loper Bright. On page 76 of their 143-page brief defending the veto they wrote:
"EPA's definition of fishery areas is reasonable if not the best reading of the statute."
Not the best reading. Their words. In their own brief. Under Loper Bright that sentence alone may be the most consequential admission in the entire case. We will explore exactly why in Chapter 6.
What Oral Argument Actually Is
This case is decided entirely on the written record. The record is closed. No new information enters the room on June 25. What happens is the lawyers come before Judge Gleason and argue about what the existing record means legally under the Clean Water Act as read through the lens of Sackett and Loper Bright.
Oral argument is not a presentation. It is a conversation between the judge and the lawyers. Each side gets a limited amount of time to speak but the judge interrupts whenever she has a question. Those interruptions are not a bad sign. They are the entire point of the exercise.
Judge Gleason has been living with this case for over a year. By June 25 she will have read every brief every exhibit and every legal citation multiple times. She already knows the arguments. What she does not know yet is how the lawyers respond when she pushes back hard on the weakest parts of their positions. That is what oral argument reveals.
When Judge Gleason asks her questions she is evaluating the Biden EPA's veto against five specific legal standards that the Administrative Procedure Act establishes. She is asking whether the agency action was arbitrary and capricious. Whether it was contrary to law. Whether it was unsupported by the record. Whether it was procedurally improper. Or whether it exceeded the agency's statutory authority entirely. These are not abstract concepts. They are the precise legal tests she applies to the Final Determination and the Response to Comments. And the plaintiffs have built specific documented arguments against the Biden EPA's veto under each one of them.
In complex environmental cases like this one the judge also uses oral argument to clarify technical or factual disputes already contained in the administrative record. Judge Gleason is not deciding the salmon science. But she may ask pointed questions about how the scientific record was used to justify specific legal conclusions. Those questions will tell you which parts of the record she finds most problematic.
Why The Questions Are The Most Important Signal Of The Day
The questions Judge Gleason asks are more informative than anything the lawyers say.
A judge who has already made up her mind on a specific question moves past it quickly. A judge who is genuinely wrestling with a question presses both sides hard. She tests the arguments from multiple angles. She looks for weaknesses.
The first fifteen minutes of the government's presentation will be especially revealing. The issues Judge Gleason addresses first are the ones she is most focused on. If she opens immediately on the fishery areas argument that is where her analysis is most concentrated. If she opens on the jurisdictional question that is the issue she finds most pressing. If she opens directly on remedy she has already concluded there are errors and is thinking about what happens next.
Pay very close attention to how she asks her questions. Not just what she asks. A skeptical tone directed at the government is a signal. A skeptical tone directed at the plaintiffs is also a signal. Both matter enormously.
And here is the most important thing to understand about what is actually happening in that courtroom on June 25. Oral argument is not just about testing legal arguments. It is where Judge Gleason determines how to structure and justify her written ruling. Every question she asks is helping her build the architecture of the opinion she will eventually publish. When she presses DOJ hard on a specific point she is often working through how she will explain that point in writing. June 25 is where the shape of the ruling becomes visible for the first time.
A Note About The DOJ Lawyers
The DOJ lawyers arguing in court on June 25 are career government attorneys defending the Biden EPA's 2023 veto because that is their professional obligation regardless of which administration is currently in office. Their presence in the courtroom does not mean the Trump administration supports the veto. Career DOJ lawyers defend inherited agency actions. That is their job. Full stop.
If there is any doubt about where the Trump administration actually stands consider what happened on April 29, 2026. Administrator Zeldin testified before the Senate Environment and Public Works Committee and Chairman Shelley Moore Capito asked him directly:
"I think it is important to emphasize at this point that the Clean Air Act and Clean Water Act written by Congress all of what you are doing here falls within the boundaries of what we have directed you to do. Is that correct."
Zeldin answered:
"Yes ma'am."
That exchange is the governing legal framework of this entire case stated explicitly under oath before the United States Senate. Congress writes the law. Agencies operate within their boundaries. Courts enforce those boundaries. That is the Administrative Procedure Act. That is the Loper Bright framework confirmed under oath by the EPA Administrator himself on April 29, 2026. In the same testimony Zeldin specifically referenced the new Waters of the United States rule confirming it is actively moving forward.
The actions and the sworn testimony point in one direction. The DOJ lawyers in the courtroom are simply fulfilling their professional obligations. Those are two entirely separate things.
What You Are Actually Watching On June 25
You are watching a federal judge apply the Clean Water Act and the Administrative Procedure Act to determine whether the Biden EPA followed the law when it issued the most unprecedented regulatory veto in the fifty-year history of that statute.
She is doing it for the very first time. No court has ever examined this veto before. The Biden EPA issued it in January 2023 expecting it would be defended under a legal framework that no longer exists. Judge Gleason is reviewing it under a legal framework the agency never anticipated. Measuring every word in those fixed unchangeable documents against a legal standard far more demanding than anything in place when they were written.
That is the historic nature of what happens on June 25. The first legal challenge to a first of its kind veto. Reviewed for the first time under first of their kind Supreme Court standards. In a courtroom where the questions the judge asks will tell us everything about what is coming.
Coming Monday I will introduce you to Judge Sharon Gleason herself.
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