AKIAK NATIVE Cmty. v. UNITED States Envtl. Prot. AGENCY

• Decision Date: 04 November 2010
• Docket Number: No. 08-74872.,08-74872.
• Citation: 625 F.3d 1162
• Parties: AKIAK NATIVE COMMUNITY; Nunamta Aulukestai; Nondalton Tribal Council; Curyung Tribal Council; Cook Inletkeeper; Alaska Center for the Environment; Alaska Community Action on Toxics; Center for Biological Diversity; The Center for Water Advocacy, Petitioners, Ekwok Tribal Council; New Stuyahok Traditional Council; Prince William Soundkeeper, Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Stephen L. Johnson, Administrator of the U.S. Environmental Protection Agency, Respondents, State of Alaska, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

625 F.3d 1162

AKIAK NATIVE COMMUNITY; Nunamta Aulukestai; Nondalton Tribal Council; Curyung Tribal Council; Cook Inletkeeper; Alaska Center for the Environment; Alaska Community Action on Toxics; Center for Biological Diversity; The Center for Water Advocacy, Petitioners,Ekwok Tribal Council; New Stuyahok Traditional Council; Prince William Soundkeeper, Intervenors,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Stephen L. Johnson, Administrator of the U.S. Environmental Protection Agency, Respondents,State of Alaska, Intervenor.

No. 08-74872.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 28, 2010.

Filed Nov. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Emily Anderson and Victoria Clark (argued), Trustees for Alaska, Anchorage, AK, for the petitioners and petitioner-intervenors.

John C. Cruden and Kenneth C. Amaditz (argued), United States Department of Justice, Washington, D.C., for the respondents.

Daniel S. Sullivan and Cameron M. Leonard (argued), State of Alaska, Fairbanks, AK, for the respondent-intervenor.

On Petition for Review of a Decision of the United States Environmental Protection Agency.

Before: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge CLIFTON; Dissent by Judge SCHROEDER.

OPINION

CLIFTON, Circuit Judge:

Petitioner Akiak Native Community and other petitioners and intervenors (collectively “Petitioners” or “Akiak”) seek review of the approval by the United States Environmental Protection Agency (“EPA”) of the State of Alaska's application to assume responsibility for administration of portions of the National Pollutant Discharge Elimination System (“NPDES”), pursuant to section 402(b) of the Clean Water Act (“CWA”), 33 U.S.C. § 1342(b). Petitioners contend that the EPA did not adequately ensure (1) that Alaska state law will provide the same opportunities for judicial review of permitting decisions as required by federal law, (2) that the State has the necessary enforcement tools to abate permit violations, and (3) that subsistence resources will be protected as mandated by the Alaskan National Interest Lands Conservation Act (“ANILCA”), 16 U.S.C. § 3101 et seq. We conclude that the EPA's decision to transfer authority to the State of Alaska was not arbitrary or capricious. Accordingly, we deny the petition for review.

I. Background

The NPDES program was established as part of the CWA to regulate the discharge of pollutants into the navigable waters of the United States. 33 U.S.C. § 1342. The EPA initially administered the NPDES permitting program in each state, but the CWA expressly provides that permitting authority shall be transferred to state officials upon a showing that the state has met the specified criteria for transfer. Id. § 1342(b); see also id. § 1251(b) ( “It is the policy of Congress that the Stat[e] ... implement the permit progra [m] under sectio[n] 1342 ... of this title.”). “If authority is transferred, then state officials-not the federal EPA-have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.” Nat'l Ass'n of Home Builders v. Defenders of Wildlife (“Home Builders”), 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). As of this time, 46 states, including Alaska, have been authorized to administer the NPDES program. See U.S. Environmental Protection Agency, NPDES State Program Status, http:// cfpub. epa. gov/ npdes/ statestats. cfm (last visited Oct. 26, 2010).

Section 402(b) of the CWA sets forth the approval process and criteria by which the EPA must evaluate state program applications. 33 U.S.C. § 1342(b); see also 40 C.F.R. § 123.1. In its application, a state must submit “a full and complete description of the program it proposes to establish and administer under State law.” 33 U.S.C. § 1342(b). A state must also certify “that the laws of such State ... provide adequate authority to carry out the described program.” Id. The EPA “shall approve” each state application “unless [the EPA] determines that adequate authority does not exist” under State law to perform nine specified categories of functions in connection with the state's administration of the NPDES program. Id. § 1342(b)(1)-(9). “If the criteria are met, the transfer must be approved.” Home Builders, 551 U.S. at 651, 127 S.Ct. 2518.

Once a state's program has been approved, permitting authority is given to the state, but the EPA retains oversight over the state program and it may object to any individual permit if it does not comply with the requirements of the CWA. 33 U.S.C. § 1342(d)(2)(B). Additionally, if a state is not administering its permitting program in accordance with the CWA, the EPA may withdraw its approval of the program as a whole. Id. § 1342(c)(3).

The State of Alaska initially submitted an application to the EPA in 2006 to administer a state program, referred to as the Alaska Pollutant Discharge Elimination System (“APDES”). The EPA deemed this application incomplete. The State resubmitted its application on May 1, 2008, and the EPA, on finding the application complete, held a 60-day notice and comment period beginning on June 18, 2008. The EPA also held three public hearings in Alaska. After receiving comments, the EPA published a Response to Comments document.

The EPA approved the State of Alaska's application to administer the APDES program on October 31, 2008, finding the proposed program met all the requirements of section 402(b) of the CWA. The permitting program was delegated to the State on November 7, 2008, with the State assuming control over the program in four phases beginning in 2008 and ending in 2011. ¹

Akiak filed a timely petition for review. The State of Alaska moved to intervene in support of the EPA and the Ekwok Tribal Council and others moved to intervene in support of Petitioners. The motions to intervene were granted.

II. Discussion

[1] Challenges to EPA actions under section 509(b) of the CWA, 33 U.S.C. § 1369(b), are reviewed under the arbitrary and capricious standard of the Administrative Procedure Act. Am. Mining Cong. v. EPA, 965 F.2d 759, 763 (9th Cir.1992). “Review under the arbitrary and capricious standard is deferential; we will not vacate an agency's decision unless it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Home Builders, 551 U.S. at 658, 127 S.Ct. 2518 (internal quotation marks omitted).

A. Judicial Review

The CWA mandates that the EPA encourage “[p]ublic participation in development, revision, and enforcement of any regulation.” 33 U.S.C. § 1251(e). Before transferring the NPDES program to a state, the CWA requires, as one of the nine criteria a state must meet for transfer of the NPDES program, that a state has the ability to “abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement.” Id. § 1342(b)(7). The implementing regulations regarding transfer of the NPDES program specify that:

All states that administer or seek to administer a program under this part shall provide an opportunity for judicial review in State Court of the final approval or denial of permits by the State that is sufficient to provide for, encourage, and assist public participation in the permitting process. A State will meet this standard if State law allows an opportunity for judicial review that is the same as that available to obtain judicial review in federal court of a federally-issued NPDES permit (see § 509 of the Clean Water Act). A State will not meet this standard if it narrowly restricts the class of persons who may challenge the approval or denial of permits (for example, if only the permittee can obtain judicial review, if persons must demonstrate injury to a pecuniary interest in order to obtain judicial review, or if persons must have a property interest in close proximity to a discharge or surface waters in order to obtain judicial review.)

40 C.F.R. § 123.30. ²

Akiak and the EPA disagree over the meaning of this regulation. Petitioners argue that the language sets forth two specific standards that stem from the general mandate to promote public participation in the permitting process. They contend that the regulation requires that a state program provide “an opportunity for judicial review that is the same as that available to obtain judicial review under federal law,” and they point to the regulation's reference to section 509 of the CWA, 33 U.S.C. § 1369, to argue that a state must provide the federal standard for awards of attorney's fees in public interest suits before the NPDES program may be transferred.

The Supreme Court, in order to protect citizen involvement in public interest suits, has established a federal fee-shifting “dual standard” that directs courts to award attorney's fees to a prevailing plaintiff in normal circumstances, but only to a prevailing defendant if the action was “frivolous, unreasonable, or groundless, or [if the] plaintiff continued to litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Under this standard, an unsuccessful plaintiff who acted in good faith is generally not at risk of having to pay the other side's attorney's fees. The language of section 509 of the CWA does not specifically set forth a dual standard for attorney's fees, for it states that “the court may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party whenever it determines that such award is appropriate.” 33 U.S.C. § 1369(b)(3). We have interpreted...