Alaska Center for the Environment v. Browner

Decision Date30 March 1994
Docket NumberNo. 92-36825,92-36825
Parties, 24 Envtl. L. Rep. 20,702 ALASKA CENTER FOR THE ENVIRONMENT; Northern Alaska Environmental Center; Southeast Alaska Conservation Council; Trustees for Alaska, Plaintiffs-Appellees, v. Carol M. BROWNER, * Administrator, United States Environmental Protection Agency; EPA Region X; Dana A. Rasmussen, Regional Administrator, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

John A. Bryson, U.S. Dept. of Justice, Washington, DC, for defendants-appellants.

Michael M. Wenig, Trustees for Alaska, Anchorage, AK, and Ronald Wilson, Columbia, MO, for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before: GOODWIN, SCHROEDER, and NORRIS, Circuit Judges.

SCHROEDER, Circuit Judge:

This is a citizen suit brought under the Clean Water Act ("CWA" or "Act") to compel the Environmental Protection Agency ("EPA") to implement the Act's provisions requiring the EPA to establish total maximum daily loads ("TMDLs") for Alaskan waters in order to achieve desired standards of water quality. Plaintiffs in this suit are four environmental organizations and their members (collectively, "ACE") who have alleged that they use Alaskan waters and are adversely affected by the EPA's failure to establish the required TMDLs. The district court issued an injunction aimed at bringing about EPA compliance with the Act. The EPA appeals, challenging plaintiffs' standing and certain remedial aspects of this injunction order. We affirm.

I. Background.

The background of this action and the statutory scheme of the CWA are excellently summarized in the district court's first published opinion in this case granting partial summary judgment in favor of the plaintiffs and holding that the EPA was in flagrant violation of the mandatory requirements of the Act. Alaska Center for the Environment v. Reilly, 762 F.Supp. 1422 (W.D.Wa.1991) ("ACE I "). As the district court explained, the CWA was passed in 1972 to " 'restore and maintain the chemical, physical and biological integrity of the Nation's waters.' " 762 F.Supp. at 1424 (quoting the CWA, 33 U.S.C. Sec. 1251). Its laudable but unattained goal was to eliminate the discharge of pollutants into navigable waters by 1985. Id.

To aid in enforcement of the Act, Sec. 505(a) authorizes citizens to bring suit in federal court against the EPA for failing to perform a mandatory "act or duty" set forth in the CWA. 33 U.S.C. Sec. 1365(a). The plaintiffs filed this suit pursuant to that section, alleging that the EPA had not performed mandatory duties under the statute to protect the waters of Alaska from further degradation. In their successful motion for partial summary judgment, plaintiffs demonstrated that the EPA had engaged in a pattern of total inaction in carrying out its duties under the CWA that extended over a period of approximately 12 years.

The provisions of the CWA at issue in this lawsuit set forth a specific process for attaining an acceptable water quality level in areas where technology-based methods of combating pollution from specific point sources have proven inadequate. Under the statutory scheme, states are required to identify the specific waters that remain polluted despite the point source controls, and designate them as "water quality limited." These states are then required to establish a priority ranking for their water quality limited segments, and establish TMDLs, the maximum amount of pollutants a water body can receive daily without violating the state's water quality standard, according to that ranking. 33 U.S.C. Secs. 1313(d)(1)(A), (C). The Act requires the states to develop these lists of water quality limited segments and TMDLs and submit them to the EPA periodically; however, the first such submission was due no later than June 26, 1979. 1

Upon receipt of the state's listings, the CWA requires the EPA to review the state's submissions within 30 days and either approve or disapprove them. If the EPA disapproves of the state's identification of water quality limited segments or its listing of TMDLs, the agency must establish its own list of water quality limited segments and TMDLs within 30 days. 33 U.S.C. Sec. 1313(d)(2).

The record before the district court showed that the State of Alaska had never submitted any TMDLs to the EPA, and that the EPA had done nothing to establish any TMDLs. Relying on the Seventh Circuit's decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984) (cited with approval in City of Las Vegas v. Clark County Nevada, 755 F.2d 697, 703-04 (9th Cir.1985)), the district court held that the State of Alaska's failure to submit the TMDLs for over a decade amounted to a "constructive submission" of "no TMDLs," thereby triggering a mandatory duty on the EPA's part to promulgate TMDLs. 762 F.Supp. at 1426-29. Rejecting the EPA's contention that its duty was not "mandatory," the district court pointed out that

Congress' repeated use of the term "shall" in section 303(d) clearly places a mandatory duty upon the EPA to take affirmative action after disapproving a state's unacceptable submission. Read in light of common sense and the fact that Congress set out such short time lines in this section, ... Congress intended that EPA's affirmative duties be triggered upon a state's failure to submit a list or any TMDL at all.

Id. at 1427. The district court then quoted with approval the Seventh Circuit's reasoning in Scott:

"We cannot allow the states' refusal to act to defeat the intent of Congress that TMDLs be established promptly--in accordance with the timetable provided in the statute. In addition, to construe the relevant statute (any other way) would render it wholly ineffective. There is, of course, a strong presumption against such a construction."

Id. (quoting Scott, 741 F.2d at 998). The court reserved the question of the precise remedy to be ordered for a later decision.

Following the district court's decision on the merits, plaintiffs moved to compel the EPA to perform specific mandatory duties under the CWA. In response, the EPA moved for partial summary judgment, seeking to limit the scope of the district court's remedy. The motion challenged the plaintiffs' standing to support the requested state-wide remedy on the ground that plaintiffs had demonstrated injury only with respect to a limited number of streams within the state.

The district court denied this challenge to standing in an unpublished decision, determining that the defendants had confused the standing requirements of injury in fact and redressability with the ultimate scope of the court's remedy. The district court also denied a subsequent, belated challenge to the plaintiffs' standing to maintain the suit at all, based on the allegedly improper use of hearsay interrogatory answers to establish injury in fact.

In June of 1992, the district court entered its order setting forth the remedy deemed necessary to cure the EPA's deficiencies. Alaska Center for the Environment v. Reilly, 796 F.Supp. 1374 (W.D.Wa.1992) ("ACE II "). In pertinent part, the district court ordered:

(3) within 90 days of the EPA's approval or disapproval of Alaska's list of water quality limited segments, the EPA shall propose a schedule for the establishment of TMDLs for all waters designated as water quality limited;

(4) within one year of the EPA's approval or disapproval of Alaska's list of water quality limited segments, the EPA shall submit to the court its report on ambient water quality monitoring; [and]

(5) within 30 days of the submission of the report, the EPA shall propose a schedule for the implementation of those measures identified as appropriate and practicable in its report.

796 F.Supp. at 1381.

The EPA in this appeal does not challenge the district court's holding in ACE I that the EPA is in violation of the mandatory requirements of the CWA. The EPA does seek review of the district court's unpublished rulings on standing, and the aspects of the district court's published order of injunctive relief quoted above.

II. Standing.

Plaintiffs have sought and received from the district court an order requiring state-wide compliance with the Clean Water Act. In order to establish standing to bring a particular suit, a plaintiff must prove (1) a concrete, particularized injury in fact; (2) a "causal connection between the injury and the conduct complained of"; and (3) that the injury is likely to be redressed by a decision in the plaintiff's favor. Lujan v. Defenders of Wildlife, --- U.S. ----, ----, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The EPA argues that the plaintiffs here have failed to prove "injury in fact" with respect to most of the specific water bodies in Alaska, and that the plaintiffs' injuries are not likely to be redressed by a favorable decision in this case.

First, the EPA argues that even if it is required to establish TMDLs, the actual quality of Alaskan waters will depend in part upon discretionary acts of the State of Alaska with respect to non-point source pollution. The EPA cites Fernandez v. Brock, 840 F.2d 622 (9th Cir.1988) to contend that plaintiffs' relief is contingent on the acts of a third party not before the court, and that the redressability requirement of standing is not met. This argument is untenable, because Congress has determined that the relief plaintiffs seek is the appropriate means of achieving desired water quality where other methods, including non-point source controls, have failed.

In Fernandez, plaintiffs were migrant workers seeking a court order to force the Secretary of Labor to establish regulations that might affect their eligibility for retirement benefits. However, because any increase in the benefits for which plaintiffs would be eligible was entirely contingent upon the actual content of the regulations the Secretary would ultimately...

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