National Wildlife Federation v. Browner

• Citation: 127 F.3d 1126
• Decision Date: 04 November 1997
• Docket Number: No. 96-5366,96-5366
• Parties: , 326 U.S.App.D.C. 451, 28 Envtl. L. Rep. 20,196 NATIONAL WILDLIFE FEDERATION, et al., Appellants, v. Carol M. BROWNER, In her official capacity as Administrator, U.S. Environmental Protection Agency and Valdas V. Adamkus, In his official capacity as Regional Administrator, U.S. Environmental Protection Agency, Region V, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1126

127 F.3d 1126

45 ERC 1577, 326 U.S.App.D.C. 451, 28

Envtl. L. Rep. 20,196

NATIONAL WILDLIFE FEDERATION, et al., Appellants, v. Carol M. BROWNER, In her official capacity as Administrator U.S. Environmental Protection Agency and Valdas V. Adamkus In his official capacity as Regional Administrator, U.S Environmental Protection Agency, Region V, Appellees.

No. 96-5366.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 11, 1997.

Decided Nov. 4, 1997.

Neil S. Kagan, Ann Arbor, MI, argued the cause for appellants, with whom Glenn P. Sugameli, Washington, DC, was on the briefs.

John A. Bryson, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for appellees, with whom Lois J. Schiffer, Assistant Attorney General, and David C. Shilton, Attorney, were on the brief.

Before: SILBERMAN, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The National Wildlife Federation and others ¹ appeal from the judgment dismissing its citizen suit under the Clean Water Act and denying its motion for summary judgment. The Federation sought to compel the Environmental Protection Agency to review and evaluate certain water quality standards. In view of the deference due to the agency's interpretation of its regulations, we find no merit to the Federation's contention that under the regulations the agency had a nondiscretionary duty to act, and accordingly, we affirm.

I.

The Clean Water Act ("the Act") requires states to establish water quality standards for every body of water within a state. See 33 U.S.C. § 1313 (1988). These standards include three components: (1) designated uses for each body of water, such as recreational, agricultural, or industrial uses; (2) specific limits on the levels of pollutants necessary to protect those designated uses; and (3) an antidegradation policy designed to protect existing uses and preserve the present condition of the waters. See 40 C.F.R. §§ 131.10-.12 (1996). The antidegradation policy is further divided into three general levels of protection. "Tier I" establishes the minimum level of water quality that must be maintained in every body of water. See id. § 131.12(a)(1). "Tier II" applies to waters whose quality already exceeds the level "necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water," and only allows a reduction in quality when "necessary to accommodate important economic or social development." Id. § 131.12(a)(2). For certain high quality bodies of water, "Tier III" prohibits any degradation of existing water quality standards with a limited exception for short-term or temporary changes in quality. See id. § 131.12(a)(3); Water Quality Standards Regulation, 48 Fed.Reg. 51,400, 51,403 (1983) (preamble). Waters falling into Tier III are designated "outstanding National resource waters" ("ONRW"). Id.

The Act requires states to review their water quality standards at least once every three years (a "triennial review"). See 33 U.S.C. § 1313(c)(1) (1988). They must submit the results of this review to the Environmental Protection Agency ("EPA"). See id. EPA is then responsible for reviewing any new or revised standards adopted by the states to determine if the standards are consistent with the Act and EPA regulations promulgated under the Act. See id. § 1313(c)(2)(A), (c)(3). If EPA disapproves the standards, the state has ninety days to correct the deficiencies else EPA must promulgate its own standards for the state. See id. § 1313(c)(3), (4).

Under Michigan's existing water quality standards, Lake Superior was in a special category created for the protection of the Great Lakes, called "outstanding state resource waters." See Mich. Envtl., Health & Safety Regs. rule 323.1098(7) (1996). The standards for this category are more stringent than those required by EPA under its "Tier II" classification and correspond to a "Tier II 1/2" level recognized by EPA "to provide a very high level of water quality protection without precluding unforeseen future economic and social development considerations." Environmental Protection Agency, Water Quality Standards Handbook § 4.2, at 4-2 (2d ed.1994) (hereinafter Water Quality Standards Handbook or Handbook). Nevertheless, in October 1994, the Federation formally petitioned the state of Michigan to designate the lake an ONRW subject to the highest level of antidegradation protection. ² The Federation also asked Michigan to consider its request as part of the state's current triennial review and to seek public comment on the issue. On February 23, 1995, Michigan denied the Federation's petition on the ground that the state "does not think that it is appropriate or necessary to hold public hearings to discuss your request ... since we do not intend to proceed with the designation."

The Federation thereafter filed a citizen suit against EPA under 33 U.S.C. § 1365(a) for its failure to review Michigan's denial of the Federation's petition. The first count of the complaint, the only one at issue, claimed that EPA was under a mandatory duty to review and either approve or disapprove of state decisions to maintain existing water quality standards, as well as state decisions to adopt new or revised standards. ³ This duty allegedly arose under both the Act and EPA's regulations. The Federation argued that Michigan's rejection of its petition constituted the completion of the state's review of water quality standards for Lake Superior, and that its failure to submit this decision to EPA was a "constructive submission" of existing water quality standards for the lake, thereby triggering EPA's mandatory duty of review.

EPA moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. The Federation, in turn, moved for summary judgment. The district court granted EPA's motion to dismiss, ruling that neither the Act nor the regulations imposed a nondiscretionary duty on EPA to review the state's decision to deny the Federation's petition, and therefore, the citizen suit could not be maintained. See National Wildlife Fed'n, 1996 WL 601451, at * 12-* 14. The court consequently denied the Federation's motion for summary judgment.

II.

The citizen suit provision of the Clean Water Act allows private individuals to sue EPA in federal district court "where there is alleged a failure of the Administrator [of EPA] to perform any act or duty under [the Act] which is not discretionary with the Administrator." 33 U.S.C. § 1365(a)(2) (1988). On appeal, the Federation has abandoned its claim that the Act imposes a mandatory duty on EPA and instead focuses solely on EPA's regulations. The primary issue on appeal, therefore, is whether the district court correctly ruled that EPA's regulations did not impose a mandatory duty on the agency to review and evaluate Michigan's denial of the Federation's petition. ⁴ Our review of the dismissal of a complaint and denial of summary judgment is de novo. See Waterview Mgmt. Co. v. FDIC, 105 F.3d 696, 699 (D.C.Cir.1997); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).

The Federation contends that EPA has a mandatory duty to review Michigan's denial of its petition under 40 C.F.R. § 131.20(c), which provides in pertinent part:

The State shall submit the results of the [triennial] review ... and any revisions of the standards to the Regional Administrator for review and approval, within 30 days of the final State action to adopt and certify the revised standard, or if no revisions are made as a result of the review, within 30 days of the completion of the review.

40 C.F.R. § 131.20(c) (1996) (emphasis added). The Federation maintains that the phrase "for review and approval" applies regardless of whether the state has adopted any new or revised standards. EPA interprets the regulation to mean that while states must submit both revised and unrevised standards, the agency is only required to approve or disapprove modifications to the standards. In EPA's view, the Federation provides no reason for its broader reading to include all previously approved but unchanged water quality standards. Consequently, EPA contends, its decision to evaluate existing state water quality standards is purely discretionary.

As a preliminary matter, EPA maintains that district courts lack jurisdiction under the citizen suit provision to enforce "obligations created by regulations." The agency interprets the citizen suit provision narrowly, to allow only for suits to enforce nondiscretionary duties that are explicitly established in the Act. We need not decide this question, ⁵ however, because even assuming that mandatory regulatory duties can provide the bases for citizen suits, no such duty exists here. ⁶

EPA interprets 40 C.F.R. § 131.20(c) to impose no mandatory duty of review over existing water quality standards. Focusing on the fact that the Act itself only imposes a mandatory duty on the agency to review and approve or disapprove new or revised standards, 33 U.S.C. § 1313(c)(3), EPA contends that the regulation is focused on the duties of the states, not the agency, and that there is no evidence to suggest that the agency intended to expand its statutory mandatory duties in promulgating the regulation. Generally, the court accords substantial deference to an agency's interpretations of its own regulations. See Auer v. Robbins, --- U.S. ----, ----, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386-87, 129 L.Ed.2d 405 (1994). Provided the interpretation "does not violate the Constitution or a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.' " Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65...