Askins v. Ohio Dep't of Agric.

• Decision Date: 06 January 2016
• Docket Number: No. 15–3147.,15–3147.
• Parties: Larry ASKINS ; Vickie Askins, Plaintiffs–Appellants, v. OHIO DEPARTMENT OF AGRICULTURE ; Ohio Environmental Protection Agency ; United States Environmental Protection Agency, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

809 F.3d 868

Larry ASKINS ; Vickie Askins, Plaintiffs–Appellants,

v.OHIO DEPARTMENT OF AGRICULTURE ; Ohio Environmental Protection Agency ; United States Environmental Protection Agency, Defendants–Appellees.

No. 15–3147.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 6, 2015.

Decided and Filed: Jan. 6, 2016.

ARGUED:Steve J. Edwards, Grove City, Ohio, for Appellants.

Kelly D. McCloud, Office of the Ohio Attorney General, Columbus, Ohio, for Ohio Appellees. Peter Krzywicki, United States Department of Justice, Washington, D.C., for Federal Appellee. ON BRIEF:Steve J. Edwards, Grove City, Ohio, for Appellants. Kelly D. McCloud, Office of the Ohio Attorney General, Columbus, Ohio, for Ohio Appellees. Peter Krzywicki, United States Department of Justice, Washington, D.C., for Federal Appellee.

Before: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.

OPINION

COLE, Chief Judge.

Plaintiffs–Appellants Larry and Vickie Askins filed a citizen suit alleging that Defendants–Appellees U.S. Environmental Protection Agency ("U.S. EPA"), Ohio Environmental Protection Agency ("Ohio EPA"), and Ohio Department of Agriculture ("ODA") (collectively, "Defendants") violated the Clean Water Act's agency permitting procedures. The district court held that the Clean Water Act does not permit suits against regulators for regulatory functions and dismissed for lack of subject-matter jurisdiction. We affirm.

I. BACKGROUND

The U.S. EPA, Ohio EPA, and ODA work together to abate pollution in Ohio. Pursuant to federal and state laws, each entity exercises authority over different types of pollution from specific sources. At issue in this case is the authority to control water pollution caused by certain animal feeding operations, which is governed by the Clean Water Act, 33 U.S.C. § 1251 et seq.

A. The Clean Water Act

The Clean Water Act grants the U.S. EPA express rights and responsibilities to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," but preserves states' "primary responsibilities and rights" to abate pollution. 33 U.S.C. § 1251(a) -(b). The Clean Water Act requires certain animal feeding operations to obtain a permit under the national pollutant discharge elimination system ("NPDES") prior to discharging any pollutant into navigable waters. 33 U.S.C. §§ 1311(a), 1342(a). The U.S. EPA may approve a state to administer a state-NPDES program, but the U.S. EPA retains authority to supervise it and withdraw approval. 33 U.S.C. § 1342(b) -(c) ; 40 C.F.R. § 123.24. Once approved, a state must seek permission from the U.S. EPA before it can transfer all or part of the state-NPDES program to another state agency. 40 C.F.R. § 123.62(c).

B. Ohio's NPDES Program

In 1974, the U.S. EPA approved the Ohio EPA to administer the state-NPDES program. In 2001, the Ohio legislature authorized ODA to submit an application to the U.S. EPA to take over the part of the state-NPDES program that regulates animal feeding operations. S.B. 141, 2000 Leg., 123rd Gen. Assemb. (Ohio 2001) (codified at Ohio Rev.Code § 903.08(A) (eff. Mar.15, 2001)). The legislation also amended Ohio's NPDES laws to reflect the transfer, which were to go into effect after ODA received the U.S. EPA's approval. ODA submitted its application to the U.S. EPA in 2006. After a series of amendments to the federal and Ohio NPDES laws, ODA submitted its revised application to the U.S. EPA on July 8, 2015, while this appeal was pending.

C. Litigation Commences

The Askinses allege that the Ohio EPA transferred its authority to administer part of the state-NPDES program to ODA when the legislation became effective in 2001. In August 2014, after several administrative appeals challenging specific NPDES permits to animal feeding operations, the Askinses filed suit in the Northern District of Ohio under the Clean Water Act's citizen-suit provision. They alleged that the following conduct violated the Clean Water Act: (1) the Ohio EPA failed to inform the U.S. EPA that it transferred authority over part of the state-NPDES Program to ODA until five years after it had done so; (2) ODA administered part of the state-NPDES Program without approval from the U.S. EPA; (3) the U.S. EPA permitted Ohio EPA to transfer part of the state-NPDES program without its approval; and (4) the U.S. EPA allowed ODA to administer part of the state-NPDES program without its approval.

The district court dismissed all of the claims, holding that the Askinses failed to establish a private cause of action under the Clean Water Act, that the U.S. EPA did not fail to perform a non-discretionary duty under the Clean Water Act, and that Defendants did not violate the Clean Water Act. See Askins v. Ohio Dep't of Agriculture, No. 14–CV–1699, 2015 WL 7888262 (N.D.Ohio Jan. 27, 2015). The Askinses appealed, arguing that if the Clean Water Act does not permit this suit, "a state agency can run amok and not one citizen in Ohio can stop the resulting chaos."

II. ANALYSIS

A. Standard of Review

When a trial court's ruling on jurisdiction is based in part on the resolution of factual disputes, a reviewing court must accept the district court's factual findings, unless they are clearly erroneous, and review the district court's application of the law to the facts de novo. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir.1996). However, it is not necessary for us to reach the factual disputes and merits of the Askinses' claims, as the district court did. Accordingly, we review de novo the district court's dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction and construe the facts in a light most favorable to the Askinses. See id. at 1134–35 ; Jones v. City of Lakeland, Tenn., 224 F.3d 518, 520 (6th Cir.2000).

B. Claims Against the Ohio EPA and ODA

In their first and second claims, the Askinses allege that the Ohio EPA and ODA violated the Clean Water Act. The Clean Water Act permits citizen suits "against any person (including ... any other governmental ... agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of an effluent standard or limitation," relevantly defined here as "a permit or condition thereof issued under [the NPDES program]." 33 U.S.C. § 1365(a)(1), (f)(6).

States may request permission from the U.S. EPA to administer a state-NPDES program after the U.S. EPA promulgates certain guidelines that govern monitoring, reporting, enforcement, funding, personnel, and manpower. See 33 U.S.C. §§ 1342(b), 1314(i)(2). Under this authority, the U.S. EPA enacted a regulation that requires a state to notify the U.S. EPA if it intends to transfer authority over part of the state-NPDES program to a different agency. 40 C.F.R. § 123.62(c) ("notification requirement"). The new agency may not administer any part of the state-NPDES program without the U.S. EPA's prior approval. Id. The Askinses argue that compliance with this notification requirement is "part of every NPDES permit issued by Ohio." Therefore, they argue, Ohio EPA and ODA are in violation of "a condition" of every NPDES permit issued because they failed to obtain the U.S. EPA's approval prior to the transfer. As explained more fully below, this argument fails because (1) violation of the notification requirement is not actionable in a citizen suit; (2) the notification requirement is not a "condition" of a permit; and (3) there is no private cause of action against regulators for violating procedural regulations. Each of these reasons deprives us of jurisdiction over the Askinses' first and second claims.

1. Violation of the notification requirement is not actionable in a citizen suit

The Askinses allege that Ohio EPA and ODA's failure to notify the U.S. EPA prior to transferring part of the state-NPDES program is a violation of a permit. However, a state is not required to comply with the notification requirement to avoid a citizen suit: "[c]ompliance with a permit issued pursuant to [the NPDES program] shall be deemed compliance, for purposes of [citizen suits], with §§ 1311, 1312, 1316, 1317, and 1343 [defining water standards]." 33 U.S.C. § 1342(k). Therefore, it is axiomatic that violation of a provision other than §§ 1311, 1312, 1316, 1317, or 1343 cannot invoke the Clean Water Act's citizen-suit provision. See id.; City of Cleveland v. Ohio, 508 F.3d 827, 847 (6th Cir.2007) (the canon expressio unius est exclusio alterius "justif[ies] the inference that [associated] items not mentioned were excluded by deliberate choice, not inadvertence" and "reading the regulation expansively would impermissibly create de facto a new regulation under the guise of interpreting a regulation." (citations and internal quotation marks omitted)).

The notification requirement at issue here was enacted pursuant to § 1314, which is not enumerated as requiring compliance for purposes of the citizen-suit provision. See 33 U.S.C. § 1342(k) ; 40 C.F.R. § 123.62(c) (enacting the notification requirement, which the Askinses argue was pursuant to 33 U.S.C. § 1314(i)(2) ). Accordingly, the Clean Water Act does not permit a citizen suit for violating that regulation.

2. The notification requirement is not a "condition" of a permit

The Clean Water Act requires the U.S. EPA to prescribe "conditions" for permits that will also be applicable to state permit programs. 33 U.S.C. § 1342(a)(2)-(3). The Askinses allege that the notification requirement, enacted under 33 U.S.C. § 1314(i)(2), is a "condition" of a permit. However, this interpretation requires us to ignore language in the statute and accept an internal contradiction.

First, the Askinses' argument ignores some of the words in the statute, which is contrary to the canons of statuary construction. See Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ("It is the cardinal principle of statutory construction that it is our duty to give effect, if possible, to every clause and...