Alaska Clean Water Alliance v. Clarke

No. C96-1762R (W.D. Wash. July 8, 1997)

The court holds that a U.S. Environmental Protection Agency (EPA) regulation providing that state water quality standards are effective immediately on adoption by the state violates the plain language of Federal Water Pollution Control Act (FWPCA) § 303(c)(3). The court first holds that an environmental group's claim that EPA failed to carry out its mandatory duty to review and approve or disapprove proposed state revisions in a timely manner is moot. An EPA letter approved all but one of the state's revised water quality standards, and this letter constitutes a final action for purpose of EPA's obligations under the FWPCA. The court next holds that the environmental group's challenge to the legality of EPA's regulation that allows a state's water quality standard to become effective immediately upon adoption is not moot. There is a reasonable expectation that the group will be faced with this issue again because of EPA's consistent practice of enforcing its regulation. And the duration of the challenged EPA action is too short to allow full litigation before further actions cancel its impact. Next, the court holds that the language in FWPCA § 303(c)(3) clearly and unambiguously supports the group's argument that Congress did not intend new or revised state standards to be effective until after EPA has reviewed and approved them. Nothing in the language contradicts the interpretation of § 303(c)(3) championed by the group, nor is there any inconsistency among the provisions that needs to be reconciled. The court rejects EPA's public policy argument, because in a case like this one where EPA and plaintiffs do not agree in all respects about congressional intent, the court must be guided by the plain language of the statute. Further, the plain language of the statute does not afford any foundation for EPA's interpretation.

Counsel for Plaintiffs
Todd D. True
Earth Justice Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Brian Kipnis, Ass't U.S. Attorney
U.S. Attorney's Office
Sea-First Plaza Bldg.
800 5th Ave., Seattle WA 98104
(206) 553-7970

[27 ELR 21330]

Rothstein, J.:

THIS MATTER comes before the court on cross-motions for summary judgment. Having reviewed the motions together with all documents filed in support and in opposition, having heard oral argument, and being fully advised, the court finds and rules as follows:

I. Factual Background

Plaintiffs Alaska Clean Water Alliance and Alaska Center for the Environment are nonprofit environmental organizations whose mission is to protect Alaska's water quality. Plaintiff Trustees for Alaska litigates cases on behalf of groups interested in environmental issues. Defendants are the United States Environmental Protection Agency (EPA), the EPA's administrator and its Region X office (collectively "EPA").

The underlying facts are undisputed. The Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, is a comprehensive statute intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through reduction and eventual elimination of the discharge of pollutants into those waters. Section 101(a), 33 U.S.C. § 1251(a). Pursuant to the CWA, each state must complete a triennial review of water quality standards and then submit any new or revised standards to EPA for its review. Section 303(c)(1) and (2), 33 U.S.C. § 1313(c)(1) and (2).

In July of 1993, Alaska announced an intent to revise certain standards. Numerous organizations, including plaintiffs in this case, filed opposition to the proposed revisions. On December 5, 1993, the proposed standards were certified and filed as state regulations. On January 26, 1995, the Alaska Department of Environmental Conservation formally submitted the regulations to EPA for review as required under section 303(c)(2) of the CWA. 33 U.S.C. § 1313(c)(2).¹

Section 303(c)(3), 33 U.S.C. § 1313(c)(3), provides that, after a state has submitted officially adopted revisions of water quality standards for EPA review, EPA must either notify the state within sixty days that the revisions have been approved or indicate within ninety days that they have been disapproved. When EPA had still not acted to approve or disapprove Alaska's new regulations by November of 1996, plaintiffs filed suit against EPA to force a decision.

On January 30, 1997, the court issued a minute order declining to schedule a trial in this case and directing the parties to file summary judgment motions by April 17, 1997. On April 7, 1997, ten days before the summary judgment motion filing deadline, EPA issued a letter approving all of Alaska's revised water quality standards with one exception not relevant to this litigation. The parties thereafter filed cross-motions for summary judgment which are now pending before the court.

II. Legal Discussion

A. Claim I

Plaintiffs' first claim is that EPA failed to carry out its mandatory duty to review and approve or disapprove the proposed revisions in a timely fashion. EPA acknowledges the duty, but argues that the claim has been mooted by the April 7, 1997 letter approving the standards.

Plaintiffs respond that the claim is not moot because EPA still has to complete consultation with the United States Fish and Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act (ESA). Final approval is conditional on successful conclusion of ESA consultation. EPA replies that ESA requirements are a separate matter from CWA approval and that, because EPA has completed its obligation under the CWA, plaintiffs' claim is moot.

The court finds EPA's argument convincing in that plaintiffs' first claim rests on EPA's statutory obligation to review the standards under the CWA. Consultation under the ESA is a separate matter which plaintiffs' complaint does not address. Claim I of plaintiffs' complaint is accordingly moot based on EPA's April 7, 1997 letter approving all but one of Alaska's revised water quality standards under the CWA. This letter constitutes a final action for purposes of EPA's obligations pursuant to the CWA.

B. Claim II

Plaintiffs' second claim focuses on an EPA regulation which has been in effect since 1983 and provides as follows:

A State water quality standard remains in effect, even though disapproved by EPA, until the State revises it or EPA promulgates a rule that supersedes the State water quality standard.

40 C.F.R. § 131.21(c). Thus, according to EPA's regulation, a water quality standard goes into effect immediately upon adoption by a state and remains in effect until revised by the state or superseded by an EPA rule even though EPA disapproves the standard at the end of the review process. In this case, the consequence of EPA's regulation was that Alaska's revised water quality standards became effective immediately upon adoption in January and September of 1995 and remained in effect throughout the period culminating on April 7, 1997 when EPA approved the regulations upon completion of its CWA review.

Plaintiffs challenge the legality of EPA's regulation on the grounds that it contravenes the express language of the CWA. Section 303(c), 33 U.S.C. § 1313(c), governs EPA's review process for new and revised state standards. Section 303(c)(3) states in relevant part as follows:

If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this chapter, such standard shall thereafter be the water quality standard for the applicable waters of that State.

Plaintiffs argue that this language clearly and unambiguously indicates a congressional intent that new or revised state standards only [27 ELR 21331] become effective after EPA has completed its review process and approved the standards under the CWA.

Before turning to the merits of plaintiffs' second claim, EPA again argues mootness on the grounds that it has approved the standards in question, thus rendering them effective even under plaintiffs' interpretation of [§ [303(c)(3). Plaintiffs respond that this issue falls under the exception to the mootness doctrine for claims capable of repetition yet evading review. Ramsey v. Kantor, 96 F.3d 434, 445 (9th Cir. 1996); Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992). The court concurs with plaintiffs' argument that there is a reasonable expectation they will be faced with this issue again because of EPA's consistent practice of enforcing its regulation, and that the duration of the challenged EPA action will be too short to allow full litigation before further events cancel its impact. Thus, plaintiffs' second claim is not moot.²

The starting point for determining whether an agency regulation conforms to congressional intent is the language of the statute itself. If that language is clear and unambiguous, then the inquiry is concluded. As the United States Supreme Court held in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 [14 ELR 20507] (1984), both court and agency must give effect to the unambiguously expressed intent of Congress.

In this case, the language of [§ [303(c)(3) clearly and unambiguously states that "if" EPA approves state standards, they shall "thereafter" be the applicable standards. On its face, this language plainly supports plaintiff's argument that Congress did not intend new or revised state standards to be effective until after EPA had reviewed and approved them.

In support of their argument, plaintiffs cite Natural Resources Defense Council v. EPA, 822 F.2d 104 (D.C. Cir. 1987) (NRDC v. EPA). In a case construing similar restrictive language, the court held that "[to] read out of a statutory provision a clause setting forth a specific condition or trigger to the provision's applicability is . . . an entirely unacceptable method of construing statutes." Id. at 113. An interpretation which has the "untoward effect of blue penciling out express conditional language in [a] statute" cannot stand. Id.

In response, EPA concedes the apparent import of the language in section 303(c)(3), but insists that this provision cannot be read in isolation and that it must be considered in the context of other provisions of the CWA. In particular, EPA singles out sections 301(b) and 510 of the CWA. 33 U.S.C. §§ 1311(b)(1)(C) and 1370.³

Having carefully examined the language of these provisions, the court finds nothing in them which contradicts or undermines the interpretation of section 303(c)(3) championed by plaintiffs nor is there any inconsistency among the provisions which needs to be reconciled. Even if there were one between sections 303(c)(3) and 510, the latter section provides explicitly for deference to the express language of other CWA provisions.

EPA makes a long, complicated argument about the underlying policy goals of the CWA. However, as the court in NRDC v. EPA indicated, "statutes are rarely, if ever, unidimensionally directed towards achieving or vindicating a single public policy." 822 F.2d at 113. Because legislation is by its nature the product of compromise and accommodation, "it would be illegitimate for the judiciary, in pursuit of some overriding Congressional goal . . . to tear asunder a specific provision which Congress saw fit to enact." Id. This is especially true in a case like this one where EPA and plaintiffs do not agree in all respects about congressional intent. In such a situation, the court must be guided by the plain language of the statute.

Another problem with EPA's interpretation of section 303(c)(3) is that it requires reading into the provision a distinction between interstate and intrastate water quality standards which finds no support in the language of the CWA or its legislative history. Recourse to such a distinction is very troubling when the plain language of the statute does not afford any foundation for it.⁴

Yet another disturbing aspect of EPA's interpretation is its reading of section 510 in a situation where a state seeks to lower its water quality standards from those in effect under the CWA. While recognizing that section 510 prohibits this result, EPA argues that the lowered standards can still become effective immediately because states typically rescind their existing standards before adopting new ones. Thus, according to EPA's interpretation, the lower standards are acceptable under section 510 since no standards are in effect at the time under the CWA. Given that the stated purpose of the CWA is to eliminate discharge of pollutants from all waters, the court finds it extremely dubious that Congress could have intended such a result.

Finally, EPA raises the spectre of practical difficulties which would ensue if the court were to accept plaintiffs' interpretation of section 303(c)(3). While EPA's concerns may have some merit they are more appropriately addressed to Congress. This court's role is to construe the language which Congress saw fit to enact in the CWA, not to weigh in on the question of how best to achieve the goals of the CWA.

III. Conclusion

Plaintiffs' motion for summary judgment is DENIED as to Claim I and GRANTED as to Claim II. Defendants' cross-motion for summary judgment is GRANTED as to Claim I and DENIED as to Claim II.

1. On September 26, 1996, Alaska submitted to EPA some additional water quality standards which had been adopted on February 14, 1996. These additional revisions were in response to comment and criticism received from environmental organizations about the original proposals.

2. EPA also briefly contends that plaintiffs' second claim is barred by the statute of limitations because the challenged regulation has been in effect since 1983. Nevertheless, plaintiffs are free to challenge the current application of the regulation as adverse to their interests. Cf., Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991).

3. Section 301(b) provides in relevant part:

In order to carry out the objectives of this Act, there shall be achieved—

* * *

(C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulations (under authority preserved by section [510] . . . or required to implement any applicable water quality standards established pursuant to this chapter.

Section 510 provides:

Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State . . . to adopt or enforce . . . (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, . . . is in effect under this chapter, such State . . . may not adopt or enforce any effluent limitation, or other limitation, . . . which is less stringent than the effluent limitation, or other limitation, . . . under this chapter.

4. Congress did recognize one distinction in the CWA between water quality standards for intrastate and interstate waters. Sections 303(a)(1) and (2), 33 U.S.C. §§ 1313(a)(1) and 2. However, this distinction only applies to standards submitted before passage of the CWA for interstate waters and standards submitted within 30 days after passage of the CWA for intrastate waters. In both cases, the CWA provides that those standards remain in effect unless found to be inconsistent with pre-CWA requirements. Far from supporting EPA's interpretation of section 303(c)(3), this explicit distinction between intrastate and interstate standards and provision that standards in force around the time of passage of the CWA remain in effect undermines EPA's argument. Clearly Congress knew how to provide for the result favored by EPA if it had wished to do so.