Environmental Defense Fund v. Costle

No. 77-1436 (D.D.C. September 1, 1978)

The court denies defendants' motion for judgment on the pleadings in a suit challenging the Environmental Protection Agency's (EPA's) and the Department of the Interior's compliance with federal statutes in connection with measures to improve water quality in the Colorado River Basin. Counts I and II of the complaint alleged that EPA violated § 303 of the Federal Water Pollution Control Act (FWPCA) by approving a salinity control plan submitted by the states of the Colorado River Basin which was deficient under the Act and in failing to promulgate adequate water quality standards on its own. Although the court may reverse the agency's actions only if arbitrary and capricious, the nature of the court's review must be intensive. Without a trial on the merits, the court will be unable to scrutinize the agency's approval of the states' plan; the motion is thus denied with respect to Counts I and II. With regard to Count III, in which plaintiff attacks EPA's failure to impose maximum salinity controls where shown to be necessary, defendants argue that § 303(d)(3) prohibits federal regulation in the absence of state action. Finding this reasoning contrary to the Act's policies of requiring EPA action where the state regulation is deficient or not forthcoming and of eliminating discharges of pollutants by 1985, the court denies the motion. Defendants' objection to plaintiff's fourth claim is addressed at an overly technical defect and is also denied. The fifth count is attacked not by the federal defendants but by the intervenor states. Since that court concerns solely the duties of the Department of the Interior under the Colorado River Basin Salinity Control Act, the states do not have standing to advance this motion and it is denied. Defendants contend that Count VI, alleging EPA's violation of § 102(2)(E) of the National Environmental Policy Act (NEPA) in failing to fully analyze alternative pollution control strategies in its environmental impact statement, is invalid because EPA is statutorily exempt from the duty to prepare an impact statement when engaged in implementation of the FWPCA. The court finds, however, that such an exemption applies only to duties imposed under § 102(2)(C) of NEPA, not to § 102(2)(E), and denies the motion. The court further finds that judgment on the pleadings is inappropriate because of several outstanding issues relating to interstate water compacts which have not been fully addressed by all the parties.

Counsel are listed at 8 ELR 20782.

[8 ELR 20786]

Flannery, J.:

This matter comes before the court on defendants' motions for judgment on the pleadings. The complaint in this case consists basically of six claims. First, EDF claims that the EPA's approval of the Colorado River Basin states' water quality and implementation [8 ELR 20787] plan in 1976 fails to meet the standards set forth in §§ 303(a) and (b) of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1313(a) and (b). Second, EDF claims that since the state standards are deficient, EPA should have promulgated its own standards, and that the failure to do so violates § 303(c)(4) of the FWPCA, 33 U.S.C. § 1313(c)(4). Third, EDF states that since the states have failed to identify those areas on the Colorado River where point source limitations are insufficient to control pollution within the statutory time period, EPA has a duty to promulgate daily maximum salinity loads for those areas pursuant to § 303(d) of the FWPCA, 33 U.S.C. § 1313(d). Fourth, EDF claims that EPA has approved state planning processes which fail to provide for adequate implementation and enforcement of the new water quality standards in violation of § 303(e) of FWPCA, 33 U.S.C. § 1313(e). Fifth, EDF claims that the Secretary of the Interior and his delegate, the Commissioner of the Bureau of Reclamation, have failed to discharge their duties under the Colorado River Basin Salinity Control Act (CRBSCA), 43 U.S.C. § 1571 et seq., by failing to assure salinity control on the river. Sixth, EDF claims that all of the federal defendants have violated § 102(2)(e) of the National Environmental Policy Act (NEPA) by failing to Study, develop, and describe alternate methods of controlling salinity levels in the river. The motion filed by the federal defendants seeks judgment on the pleadings for the EPA for claims 1 through 4, and 6. This motion had been joined by the States of Nevada, California, Utah, and Arizona. In addition, the States of Colorado and Wyoming have jointly filed their own motion for judgment on the pleadings or in the alternative a motion in limine. By this motion, the States of Colorado and Wyoming join in the federal defendants' motion, but also move for judgment on the pleadings as to claim 5, and indicate that if this refuses to grant judgment on the pleadings as to claims 1 and 2, the court should then at least limit the scope of the inquiry directed to those claims.

Federal Rule of Civil Procedure 12(c) provides for the filing of motions for judgment on the pleadings. Such a motion may, however, be granted only in a limited number of circumstances.A motion for judgment on the pleadings submits issues to the court for determination solely on the applicable law. Franklin National Bank v. Krakow, 295 F. Supp. 910, 915 (D.D.C. 1969). This motion may not be granted if there are issues of fact presented by the pleadings which are still in dispute. Id.; George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977). The allegations made in the pleadings must be viewed in the light most favorable to the non-moving party. Franklin National Bank v. Krakow, supra, 295 F. Supp. at 915.Although Rule 12(c) provides that the court may look to information beyond the pleadings, thereby treating the motion as a motion for summary judgment, the court need not look beyond the pleadings. Stearns v. Veterans of Foreign Wars, 500 F.2d 788, 791 (D.C. Cir. 1974). Although Rule 12(c) does not address the situation in which the court may award judgment on the pleadings to the non-moving party, it does appear that since such a motion is designed to dispose of the case on the merits, it would not be inappropriate to award judgment on the pleadings to the non-moving party, if the issues have been fully presented. See 6 MOORE'S FEDERAL PRACTICE P56.12 (summary judgment may be granted for non-moving parties).

The distinct nature of the motion for judgment on the pleadings causes some problems in the present context. In addition to the motions and responses catalogued above, the intervening group headed by the Mountain States Legal Foundation has filed a brief outlining the effect of the various interstate compacts in the Colorado River Basin on the present suit. Plaintiff has filed a reply brief, and Mountain States Legal Fund has filed a further response. These briefs present serious issues not properly before this court at this time. Mountain States Legal Fund argues that the FWPCA and CRBSCA cannot properly apply to the issues at hand since Congress has heretofore approved a number of interstate water use compacts which may not now be disturbed without the approval of the states. Although plaintiff has stated its position as to this issue, the other defendants have not. It appears that the issues presented by the Mountain States Legal Fund brief would best be addressed by a motion to dismiss or for summary judgment filed by one of the defendants. The present motion before the court is not broad, and the court will not expand the scope of the present motion sua sponte. The court will, therefore, defer consideration of the arguments advanced by the Mountain States Legal Fund until another time when it is properly and fully briefed by all parties. The court will, however, dispose of the instant motion at this time.

I. First Claim

As indicated above, plaintiff's first claim is that the standards and implementation plan promulgated by the basin states and approved by EPA fail to meet the standards set in the FWPCA. Defendants contend that the complaint asks this court to conduct a de novo review of the water quality standards and implementation plans, and that such a review is specifically prohibited. The States of Colorado and Wyoming, while joining in this motion, also ask that this court declare what the limits of its review capacity in this case are, and that the complaint be limited to that scope of review.

Defendants' concerns in this regard are totally without merit. Plaintiff admits that, pursuant to § 10 of the Administrative Procedure Act, this court may overturn the Administrator's decision to approve the state standards and plans only if that decision was arbitrary and capricious or otherwise not in accordance with the law. However, it is clear that in order to determine whether the Administrator has acted arbitrarily or capriciously, the court must investigate the substance of the standards and plans approved. Only in this way can the court determine whether the Administrator fulfilled his duty to implement the policies of the FWPCA in adopting regulations promulgated by the basin states rather than promulgating such regulations himself. Such a determination will require the court to immerse itself in a great deal of highly technical data.However, though the appropriate evidentiary review is broad, the grounds upon which this court may reverse the Administrator's actions are still quite narrow. Ethyl Corp. v. EPA, 541 F.2d 1, 36 [6 ELR 20267] (D.C. Cir. 1976) (en banc), cert. denied, 426 U.S. 941 (1976). It does not appear, therefore, that this issue is appropriate for judgment on the pleadings. The court has defined the appropriate scope of review, but the determination of the validity of the regulations is a factual question which is still in dispute.

II. Second Claim

Defendants have raised the same issue with regard to the second claim as was raised with regard to the first claim. For the reasons stated above, the motion for judgment on the pleadings as to this issue is also denied.

III. Third Claim

With regard to the third claim, in which plaintiff alleges that EPA has violated the FWPCA by failing to identify areas in which point source pollutant regulation is insufficient and then promulgate maximum salinity load limits, the defendants contend that EPA is under no duty to promulgate such standards in the absence of state action. 33 U.S.C. § 1313(d)(1) provides that the state must identify such areas and determine the load limits within a certain time period. Section 1313(d)(2) provides the EPA must approve this identification and load level, and that if EPA finds the state presentation insufficient, then EPA shall act on its own to identify the waters and set the load limits. This subsection does not indicate the procedure to be followed if the state fails to meet the statutory deadline.The defendants in this case admit that the states have missed this cut-off date.

The overall scheme of the FWPCA reveals that Congress sought to allow the states, as much as possible, to originate pollution control standards and plans. However, the Act specifically provides that the EPA is to act if the states fail to act or act in a deficient manner with regard to water quality standards, 33 U.S.C. § 1313(c)(4)(B), and implementation plans, 33 U.S.C. § 1313(e)(2). The Act also sets 1985 as a deadline for the elimination of pollutants in navigable waters. In view of the fact that § 1313(d)(2) requires the states to act, and that EPA has the authority to reject state actions with regard to identification of pollution and the setting of maximum load limits, it cannot be said that state inaction renders EPA powerless. If the FWPCA applies [8 ELR 20788] to this case, and that question is of course open due to the unresolved nature of the issues posed in the intervenors' brief, it would appear that EPA does have the duty to act in the absence of state action to identify waters in which point source control is insufficient and to set maximum load limits. Therefore, defendants' motion must be denied, but judgment cannot be granted for plaintiffs due to the pendency of the question regarding the effect of the interstate water compacts.

IV. Fourth Claim

In paragraph 57 of the complaint, plaintiff states that the states' continuing planning processes are deficient because they do not contain adequate implementation provisions.Section 33 U.S.C. § 1313(e)(3) provides that the Administrator shall approve such planning processes only if they are likely to result in plans which contain adequate implementation standards. Defendants claim that since the complaint states that the planning processes themselves shall require such implementation standards, this claim is defective and should be dismissed. This is clearly an overly literal reading of the complaint. Both sides agree that the Administrator has authority to review the planning procedures to see that they measure up to the requirements of § 1313(e). Plaintiff's forth claim is not so defective as to warrant granting judgment on the pleadings to defendants, and therefore, defendants' motion is denied.

V. Fifth Claim

Plaintiff's fifth claim in the complaint is that the Secretary of the Interior and his delegate the Commissioner of the Bureau of Reclamation have failed to implement the policies of the Colorado River Basin Salinity Control Act. Neither the Secretary nor the Commissioner has moved to dismiss this claim. Rather the States of Colorado and Wyoming have moved to dismiss this claim. While the various states do have standing to move for judgment as to claims 1-4, since the states developed the plans adopted by EPA, claim 5 relates solely to the Secretary of the Interior and the Commissioner of the Bureau of Reclamation. The CRBSCA outlines specific duties of the Secretary and his delegate designed to implement the conclusions reached at the April 1972 conference of the basin states.The Act allows for no input by the states. As such, it would appear that the states lack standing to advance this motion and it therefore is denied.

VI. Sixth Claim

In the sixth claim of the complaint, plaintiff alleges that the federal defendants have failed to abide by § 102(2)(E) of NEPA, 42 U.S.C. § 4332(2)(E), in that they have not filed an EIS which studies, develops, and describes alternative methods of controlling salinity. Defendants claim that EPA is expressly exempted from the requirements of NEPA. While it is true that no EPA action pursuant to 33 U.S.C. § 1371(c)(1) is to be construed as a major federal action affecting the environment within the meaning of § 102(2)(C)(iii), this court has previously recognized that the EIS requirement of § 102(2)(C)(iii). National Wildlife Federation v. Andrus, 440 F. Supp. 1245, 1253 (D.D.C. 1977). 33 U.S.C. § 1371, a part of the FWPCA, exempts EPA only from the narrower provisions of § 102(2)(C)(iii). The legislative history is devoid of any indication that Congress intended to exempt all EPA action under the FWPCA from NEPA and its other requirements. Indeed, in order to give harmonious application to both statutes, the interpretation advanced by defendants is totally unacceptable. The specific exemption provided by Congress should not be expanded beyond its clear language. Further Senators Jackson, Nelson, and Hart, during floor debate in the Senate, all accepted the view that § 102(2)(E) specifically applied to EPA actions pursuant to FWPCA. See A LEGISLATIVE HISTORY OF FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 93rd Cong., 2d Sess., at 205-211. Since the language of 33 U.S.C. § 1371 is clear on its face, the court need not resort to legislative history, but that legislative history does not prevent the conclusion that the exemption in § 1371 should be narrowly construed. Therefore, defendants' motion will be denied on this point. Also, since the interstate compacts may impinge on this area, it would be inappropriate to grant judgment for plaintiff at this time.

For these reasons, it is by this court, this 31st day of August 1978.

ORDERED that defendants' motions for judgment on the pleadings be, and hereby are, denied.