Petition for Review of Order of the United States
Environmental Protection Agency
ED CARNES, Chief Judge, BRANCH, Circuit Judge, and GAYLES,
GAYLES, DISTRICT JUDGE
case places us squarely into another debate of whether United
States Environmental Protection Agency's (the
"EPA") 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.
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.
The Clean Water Act and Regulations
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. §
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.
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. 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.
Alabama's NPDES Permit Program
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).
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.
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.
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.
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.
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).
justiciability analysis begins with the question of
Petitioners' standing.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.").
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.
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").
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 ...