Sierra Club v. Meiburg, 01-14587.

• Decision Date: 02 July 2002
• Docket Number: No. 01-14587.,01-14587.
• Citation: 296 F.3d 1021
• Parties: SIERRA CLUB, Georgia Environmental Organization, Inc., Coosa River Basin Initiative Inc., Trout Unlimited, Ogeechee River Valley Association, Inc., Plaintiffs-Appellees, v. A. Stanley MEIBURG, Acting Regional Administrator, Christine T. Whitman, Administrator, the United States Environmental Protection Agency, United States Environmental Protection Agency ("U.S.EPA"), Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1021

296 F.3d 1021

SIERRA CLUB, Georgia Environmental Organization, Inc., Coosa River Basin Initiative Inc., Trout Unlimited, Ogeechee River Valley Association, Inc., Plaintiffs-Appellees, v. A. Stanley MEIBURG, Acting Regional Administrator, Christine T. Whitman, Administrator, the United States Environmental Protection Agency, United States Environmental Protection Agency ("U.S.EPA"), Defendants-Appellants.

No. 01-14587.

United States Court of Appeals, Eleventh Circuit.

July 2, 2002.

John A. Bryson, Robert Oakley, U.S. Dept. of Justice, Environment & Natural Resources Div., App. Section, Greer Goldman, Washington, DC, for Defendants-Appellants.

Douglas P. Haines, Georgia CLPI, Kesler Thompson Roberts, Georgia Legal Watch, Athens, GA, Eric E. Huber, Earthjustice, Denver, CO, Donald D. Stack, Martin Arthur Shelton, Stack & Associates, PC, Atlanta, GA, for Plaintiffs-Appellees.

William Russell Phillips, GA Dept. of Law, Atlanta, GA, for Amicus Curiae Georgia Environmental Protection.

Robert D. Mowrey, Alston & Bird, LLP, Atlanta, GA, for Amicus Curiae Georgia Municipal Ass'n.

Lee A. DeHihns, III, Alston & Bird, Atlanta, GA, for Amicus Curiae County Comm'rs of Georgia.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and CARNES and SILER^*, Circuit Judges.

CARNES, Circuit Judge:

The order we have before us in this appeal is based upon either an interpretation of a consent decree or a modification of the decree. Which one of the two the order is determines whether we have jurisdiction to review it. If the order is a modification of the decree, instead of merely an interpretation, we have appellate jurisdiction and the issue we must then decide is whether the district court abused its discretion by modifying the decree as it did.

The consent decree itself resulted from a lawsuit brought by Sierra Club, along with a collection of state and local environmental organizations, against EPA.¹ The plaintiff environmental groups (for convenience we will refer to them collectively as Sierra Club), had sued EPA to force it to establish and implement pollution standards for Georgia waterways. The consent decree that was eventually entered set out a timetable for the establishment of those standards. EPA did establish the standards.

A couple of years after the consent decree had been entered, none of the pollution standards EPA established as a result of the decree had actually been implemented. Upset with the lack of progress, Sierra Club moved the district court to reopen the consent decree and to take action compelling EPA to develop implementation plans for the standards. EPA took the position that the State of Georgia had the primary responsibility for implementing the standards EPA had established. The district court deferred ruling on Sierra Club's motion pending Georgia's development of the implementation plans. Once Georgia filed with the court what it asserted were the required plans, EPA moved to have Sierra Club's motion to re-open and compel declared moot. Sierra Club responded that Georgia's implementation plans were not adequate and insisted that EPA had the responsibility under the decree for formulating them. The district court denied EPA's mootness motion because it agreed with Sierra Club that the consent decree required EPA to develop implementation plans or to ensure that those Georgia developed were adequate to satisfy the Clean Water Act.

EPA has appealed the district court's order refusing to dismiss as moot Sierra Club's motion to re-open and compel, contending that the court's decision to impose on it an implementation-plan requirement modified the decree, and that the modification was an abuse of the district court's discretion. Sierra Club takes the position that the district court, when it stated EPA was required to develop implementation plans, was not modifying but merely interpreting the consent decree. If that is so, we lack jurisdiction over this appeal, because the only possible jurisdictional basis for it is 28 U.S.C. § 1292(a)(1) which authorizes us to review interlocutorily an order modifying an injunction. Sierra Club also argues in the alternative that, even if the district court's interpretation of the decree crossed the line into modification, thereby giving us jurisdiction to review it, we should hold that in view of changed circumstances the modification was not an abuse of discretion.

Our reading of the consent decree convinces us it did not require EPA to develop an implementation plan for the water quality standards it was to set, and the clarity of the decree on the point is sufficient that the district court's later imposition of such a requirement constitutes a modification of the decree. As a result, we have jurisdiction to review the district court's action, and we conclude that the court abused its discretion by grafting onto the decree a substantial modification that was not part of the original bargain between the parties.

I. BACKGROUND

The dispute about the terms of the consent decree plays out against the background of the statutory and regulatory scheme established by the Clean Water Act, 33 U.S.C. § 1251 et seq., so we will start with a description of that scheme. Congress passed the Clean Water Act (the "Act") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve that goal, the Act gives EPA two main roles and responsibilities. The first is issuing permits that govern individual discharges of pollutants, and the second is setting global water quality standards for particular bodies of water.

Permits and Point Sources

Section 301(a) of the Act prohibits the discharge of any pollutants except those that are sanctioned by a permit. 33 U.S.C. § 1311(a). The statute gives EPA the authority to issue permits for point sources, and those permits are to establish technology-based effluent limitations that incorporate increasingly stringent levels of pollution control technology over time. 33 U.S.C. §§ 1311(b)(1)(A), (B), (b)(2). The limits set out in the permits are to be based on how low current technology can push pollution levels, and those limits are to be lowered as pollution-reducing technology improves. Permits are issued to individual dischargers through the National Pollutant Discharge Elimination System (NPDES) program. Id. at § 1342. Like most states, Georgia administers the NPDES program within its borders subject to EPA oversight of the states's permit-issuing procedures.²

Permits cannot control all sources of pollution. They are aimed only at pollution coming from a "point source," which is "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged," that offers a particular "point" to measure the amount of pollution being discharged. 33 U.S.C. § 1362(14).

Non-Point Sources, Water Quality Standards, and TMDLs

In addition to originating from point sources, pollution also comes from non-point sources, such as runoff from farmlands, mining activity, housing construction projects, roads, and so on. Non-point sources cannot be regulated by permits because there is no way to trace the pollution to a particular point, measure it, and then set an acceptable level for that point. Therefore, to regulate non-point pollution, the Act requires states to establish water quality standards. 33 U.S.C. §§ 1313(a)(c). To determine the water quality standard, a state designates the use for which a given body of water is to be protected (fishing, for example), and then determines the level of water quality needed to safely allow that use. Id. at § 1313(c)(2)(A). That level becomes the water quality standard for that body of water.

Things can get complicated. Because of non-point source pollution, achieving the specified water quality standard in a body of water may require more stringent limitations upon point-source discharges than would otherwise be required under the permit-issuing regime we have previously described. If the regulation of point-source discharges does not achieve the necessary level of water quality, Total Maximum Daily Loads (TMDLs) come into play. Id. at § 1313(d)(1)(A), (C). A TMDL is a specification of the maximum amount of a particular pollutant that can pass through a waterbody each day without water quality standards being violated. Id. at § 1313(d)(1)(C).

TMDLs must be established for every waterbody within the state for which ordinary technology-based point-source limits will not do enough to achieve the necessary level of water quality. Id. at §§ 1313(d)(1)(A), (C). The state must compile a list of these bodies of water in a report and submit it to EPA for approval. Id. at §§ 1313(d)(1)(A), (d)(2). (This list is sometimes referred to as "the 303(d) list," because that is the section of the Act which requires each state to prepare the list.) Each body of water on the list is known as a "water quality limited segment" (or "limited segment" for short), see 40 C.F.R. § 130.2(j), and the state must set a TMDL for every pollutant in each limited segment.³ 33 U.S.C. § 1313(d)(1)(C).

Each TMDL serves as the goal for the level of that pollutant in the waterbody to which that TMDL applies, allocating the total "load" — the amount of pollutant introduced into the water, see 40 C.F.R. § 130.2(e) — specified in that TMDL among contributing point and non-point sources. The theory is that individual-discharge permits will be adjusted and other measures taken so that the sum of that pollutant in the waterbody is reduced to the level specified by the TMDL. As should be apparent, TMDLs are central to the Clean Water Act's water-quality scheme because, as one of the plaintiffs puts it, they tie "together point-source and nonpoint-source pollution issues in a manner that addresses the whole health of the water." Brief of Appellee Ogeechee River Valley...