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Riverkeeper v. U.S. Environmental Protection Agency

United States Court of Appeals, Eleventh Circuit

September 12, 2019

CAHABA RIVERKEEPER, et al., Petitioners,

          On Petition for Review of Order of the United States Environmental Protection Agency

          Before ED CARNES, Chief Judge, BRANCH, Circuit Judge, and GAYLES, [*] District Judge.


         This case places us squarely into another debate of whether United States Environmental Protection Agency's (the "EPA")[1] action (or inaction) was arbitrary, capricious, or otherwise not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The parties dispute whether the E PA has sufficiently supervised how Alabama protects its waterways from pollutants. The EPA gets this supervisory authority from the Clean Water Act, 86 Stat. 816, as amended, 33 U.S.C. §§ 1251-1388 (2018) ("CWA"), which allows it to partner with Alabama to implement appropriate protections. The EPA can withdraw from the partnership if it finds that there are regulatory violations with Alabama's program. Petitioners claim that the EPA must do that here because-and it is not disputed that-Alabama's administration of its program has not always complied with federal law. The EPA disagreed, and Petitioners sued.

         The primary question on appeal, therefore, is whether the E PA has discretion not to commence withdrawal proceedings under 40 C.F.R. § 123.64(b) even if it finds that a state's National Pollutant Discharge Elimination System ("NPDES") permit program has not always complied with the requirements of the C WA . Because no statute or regulation requires otherwise, the Court concludes that the answer is yes.

         I. BACKGROUND

         A. The Clean Water Act and Regulations

         The Clean Water Act aims to eliminate the discharge of harmful pollutants into U.S. waters. See 33 U.S.C. § 1251(a). It does so by partnering with the states through a system of grants, projects, and standards; the creation of special oversight offices; and permit and licensing programs, see id. §§ 1251-1346, including the NPDES, id. § 1342. By default, the CWA authorizes the EPA to issue NPDES permits. Id. § 1342(a)(1). But to "recognize, preserve, and protect the primary responsibilities and rights of States" over environmental issues, id. § 1251(b), the statute sets forth a mechanism for states to assume responsibility for issuing NPDES permits. Id. § 1342(b).

         Under the CWA, a state wishing to operate its own NPDES permit program submits a proposal that includes a program description and other documentation to the EPA. Id. The EPA Administrator then "shall approve [the] submitted program unless he determines that adequate authority does not exist" to, among other requirements, "insure that the public . . . receive[s] notice of each application for a permit" and "[t]o abate violations of the permit or the permit program, including civil and criminal penalties . . . ." Id. § 1342(b), (b)(3), (b)(7) (emphasis added). State permit programs must comply with the EPA regulations detailed in its state-program requirements. See id. § 1342(c)(2); 40 C.F.R. pt. 123.

         Four statutory and regulatory requirements for state permit programs are relevant here: (1) public notice, (2) board membership, (3) inspections of major dischargers, and (4) the state's enforcement authority.[2] State programs must "at all times be in accordance with [§ 1342] and guidelines promulgated pursuant to section 1314(i)(2) . . . ." 33 U.S.C. § 1342(c)(2). Further, the EPA must withdraw a state's authorization to run its own NPDES permit program if it determines, after conducting withdrawal proceedings and giving the state a chance to take corrective action, that the program has fallen out of compliance. See id. § 1342(c)(3). Per the regulation, the EPA may commence withdrawal proceedings on its own "or in response to a petition from an interested person . . . ." 40 C.F.R. § 123.64(b)(1). The EPA must respond in writing to any such petition and "may conduct an informal investigation of the allegations in the petition to determine whether cause exists to commence proceedings . . . ." Id.

         B. Alabama's NPDES Permit Program

         In 1979, the EPA authorized the Alabama Department of Environmental Management ("ADEM") to administer Alabama's NPDES permit program. As required by 40 C.F.R. § 123.21(a)(4), the state and the EPA entered into a Memorandum of Agreement, which may be updated periodically. See § 123.24(c).

         Petitioners here are seven environmental groups: Cahaba Riverkeeper; Choctawhatchee Riverkeeper, Inc.; Friends of Hurricane Creek; Black Warrior Riverkeeper, Inc.; Sierra Club Alabama Chapter; Friends of the Locust Fork River; and Alabama Rivers Alliance (collectively, "Petitioners"). All seven are Alabama nonprofit, member corporations that advocate for the environmental protection of particular waters. On January 14, 2010, Alabama Riverkeepers Alliance and 13 other environmental groups, including Petitioners, petitioned the EPA to commence proceedings to withdraw Alabama's authority to administer the NPDES permit program. The groups cited 26 regulatory and statutory violations as grounds for withdrawal. Complying with the E PA's request, ADEM responded to the petition on April 13, 2010, addressing each of the 26 alleged violations in turn.

         On April 9, 2014, the EPA issued its interim response to the petitions, indicating that it would not commence withdrawal proceedings based on 20 of the 26 grounds but would defer a decision on the remaining six.[3]

         Petitioners appealed the interim response to this Court. Cahaba Riverkeeper v . EPA, 806 F.3d 1079 (11th Cir. 2015). The Court held that its statutorily-given jurisdiction to review "any determination" by the E P A regarding a state NPDES program was limited to final agency actions. Id. at 1084; see 33 U.S.C. § 1369(b)(1) (vesting jurisdiction in the Courts of Appeals to review the EPA's action "in making any determination as to a State permit program submitted under section 1342(b) of [Title 33] . . . ."). The Court dismissed the appeal without prejudice, noting that "[t]he organizations will . . . be able to appeal once the EPA resolves the outstanding matters and makes a definitive decision on the relief requested by the petitions." Cahaba Riverkeeper, 806 F.3d at 1084.

         On January 11, 2017, the EPA issued its final response to the petitions, affirming its previous refusal to commence withdrawal proceedings against Alabama. Petitioners now seek review of that final response. They argue that the E PA's refusal to commence withdrawal proceedings based on four specific statutory and regulatory grounds was arbitrary and capricious, an abuse of discretion, or contrary to law.


         The Courts of Appeals have original jurisdiction to review the EPA's action "in making any determination as to a State [NPDES] program . . . ." 33 U.S.C. § 1369(b)(1); see Friends of the Everglades v. EPA, 699 F.3d 1280, 1285 (11th Cir. 2012). Before we can exercise that jurisdiction, we must ensure that the action before us is a "case" or "controversy" "of the justiciable sort referred to in Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

         The justiciability analysis begins with the question of Petitioners' standing.[4]Organizations have standing to sue on behalf of their members only when the members themselves "would otherwise have standing to sue in their own right." Hunt v. Wa. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). An individual has standing to sue when "(1) [he or she] has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). But an individual can enforce a procedural right, such as "the right to challenge agency action unlawfully withheld," "without meeting all the normal standards for redressability and immediacy." Massachusetts v. EPA, 549 U.S. 497, 517-18 (2007) (citations and quotation marks omitted). Instead, "[w]hen a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." Id. at 518 (citation omitted); see Lujan, 504 U.S. at 573 n.8 (explaining that an individual "assuredly can" enforce procedural rights "so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing"); Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006) ("To show a cognizable injury in fact in a procedural injury case, a plaintiff must allege that the agency violated certain procedural rules, that these rules protect a plaintiff's concrete interests and that it is reasonably probable that the challenged action will threaten these concrete interests.").

         To prove standing, Petitioners submitted declarations from three of their members: (1) John Wathen of Friends of Hurricane Creek; (2) Michael William Mullen of Choctawhatchee Riverkeeper, Inc.; and (3) Myra Ann Crawford of Cahaba Riverkeeper. Each of these individuals serves as the "Riverkeeper" (or, in the case of Wathen, the "Creekkeeper") for their respective waterways, and they have been swimming, kayaking, and fishing in those waterways for years. They allege that the EPA's decision not to commence withdrawal proceedings threatens their enjoyment of their waterways. They also claim to have "witnessed the pollution" of the waterways and "attribute much of this pollution to poor regulation of pollution sources under the Alabama NPDES permit program . . . and poor oversight of the Alabama NPDES permit program by EPA." They also state that they would "recreate in these waters more and enjoy [their] recreational activities more, if EPA required that Alabama's NPDES program fully complied with the minimum requirements of 40 C.F.R. pt. 123."

         Those statements are enough to establish injury in fact. "[E]nvironmental plaintiffs adequately allege injury in fact when they aver they use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Friends of the Earth, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); see also Sierra Club v. Johnson (Johnson I), 436 F.3d 1269, 1279 (11th Cir. 2006) (concluding that the plaintiff's "injury in fact exists as a result of concerns about pollution, concerns that arise because the failure to use one of the mandated public participation procedures leaves him uncertain about whether pollution is being emitted in illegal quantities").

         The declarations are also adequate to show that the EPA's decision not to commence withdrawal proceedings is a cause of the alleged injuries. "The proper focus on causation is not harm to the environment, but harm to the plaintiffs." Jacobs, 463 F.3d at 1172. For instance, in Jacobs, where a coalition of environmental groups challenged the U.S. Forest Service's change to certain forest plans, this Court held that the plaintiffs had standing to sue because their rights under the National Environmental Policy Act ("NEPA") had been violated, and "[s]ince the Forest Service (according to [the plaintiffs]) failed to follow NEPA, it [was] clear that the Forest Service caused [the ...

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