Ctr. for Biological Diversity v. Regan

• Decision Date: 30 March 2022
• Docket Number: Civil Action 21-119 (RDM)
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. MICHAEL S. REGAN, et al, [1] Defendants.
• Court: U.S. District Court — District of Columbia

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. MICHAEL S. REGAN, et al, ^[1] Defendants.

Civil Action No. 21-119 (RDM)

United States District Court, District of Columbia

March 30, 2022

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

During the final days of a president's term in office, there is often a rush to complete the regulatory work of that administration before a new administration takes office. Incoming administrations, in turn, will often put in place a regulatory freeze, which, among other things, directs agencies to postpone the effective dates of rules that have not yet taken effect to provide the new administration with the opportunity to consider any issues that those prospective rules might present. See, e.g., 86 Fed.Reg. 7, 424 (Jan. 20, 2021) (Memo from Ronald A. Klain, Assistant to the President and Chief of Staff); 82 Fed.Reg. 8, 346 (Jan. 20 2017) (Memo from Reince Priebus, Assistant to the President and Chief of Staff). This, then, adds to the outgoing administration's rush to complete its work, so that any new rules are not only promulgated, but effective, before the presidential transition occurs. The questions presented by the pending motions in this case are whether the Environmental Protection Agency (“EPA”) cut corners to finalize its decision to transfer certain Clean Water Act, 33 U.S.C § 1251 et seq., permitting authority from the Army Corps of Engineers (“Corps”) to the State of Florida in late 2020, and, if so, whether the Plaintiffs—seven environmental organizations—suffered any cognizable and redressable injuries as a result.

Plaintiffs' complaint spans the (metaphorical, if not veritable) waterfront, from the Clean Water Act to the Endangered Species Act to the Rivers and Harbors Act, and asserts nine claims, which challenge both the substance of the EPA's decision and the administrative process through which the EPA reached that decision. See Dkt. 1 at 27-35 (Compl. ¶¶ 118-61). For present purposes, however, the parties have limited their arguments to Plaintiffs' standing to bring this action and, if they have standing, to the merits of Counts Eight and Nine of their complaint. Those counts challenge the process, rather than the substance, of the EPA's decision. In Count Eight, Plaintiffs allege that the EPA's decision to give immediate effect to its approval of Florida's Section 404 program violated the APA in two respects: first, it violated 5 U.S.C. § 553(d), which requires agencies to publish final, substantive rules “not less than 30 days before [their] effective date, ” and, second, the agency violated 5 U.S.C. § 706(2) because its efforts to characterize its decision as an adjudication (and not a rulemaking) and its failure to codify its decision were arbitrary and capricious and not in accordance with law. Dkt. 1 at 46-47 (Compl. ¶¶ 228-39). And, in Count Nine, Plaintiffs allege that the EPA's failure to codify Florida's Section 404 program was arbitrary and capricious and not in accordance with law in violation of 5 U.S.C. § 706(2) and that the agency's omission has “rendered the transfer of authority” to the State of Florida “a nullity.” Id. at 47-48 (Compl. ¶¶ 240-48).

For the reasons that follow, the Court concludes that Plaintiffs have standing to assert their claims in Count Nine; that the Court requires further briefing to determine whether Plaintiffs' claims in Count Eight are redressable; that Plaintiffs have alleged enough to overcome Florida's motion to dismiss the remaining counts for lack of standing, although the Court will need to revisit standing at the summary judgment stage on Plaintiffs' remaining claims; and that Count Nine fails on the merits. The Court, accordingly, will DENY Plaintiffs' motion for partial summary judgment, Dkt. 31, will GRANT in part and DENY in part the EPA's cross-motion for partial summary judgment, Dkt. 34, and will GRANT in part and DENY in part the State of Florida's motion to dismiss, Dkt. 36.

I. BACKGROUND

A. Statutory and Regulatory Background

At the core of this case is Section 404 of the Clean Water Act, which governs the issuance of permits for “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). Although Corps is responsible for the issuance of such permits, a state may submit an application to the EPA, 40 C.F.R. § 233.1(a), seeking authority to “administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters . . . within its jurisdiction, ” 33 U.S.C. § 1344(g)(1); See also Dkt. 1 at 16 (Compl. ¶ 68) (“The Corps is charged with administering permits under [S]ection 404 of the Clean Water Act.”).

A state's application to assume permitting authority under Section 404 must include, among other things, a “complete program description” and a “statement” from the state's attorney general. 40 C.F.R. § 233.10. The “complete program description” “shall include” the following:

(a) A description of the scope and structure of the State's program. The description should include extent of State's jurisdiction, scope of activities regulated, anticipated coordination, scope of permit exemptions if any, and permit review criteria;

(b) A description of the State's permitting, administrative, judicial review, and other applicable procedures;

(c) A description of the basic organization and structure of the State agency (agencies) which will have responsibility for administering the program. If more than one State agency is responsible for the administration of the program, the description shall address the responsibilities of each agency and how the agencies intend to coordinate administration and evaluation of the program;

(d) A description of the funding and manpower which will be available for program administration;

(e) An estimate of the anticipated workload, e.g., No. of discharges[;]

(f) Copies of permit application forms, permit forms, and reporting forms;

(g) A description of the State's compliance evaluation and enforcement programs, including a description of how the State will coordinate its enforcement strategy with that of the Corps and EPA;

(h) A description of the waters of the United States within a State over which the State assumes jurisdiction under the approved program; a description of the waters of the United States within a State over which the Secretary retains jurisdiction subsequent to program approval; and a comparison of the State and Federal definitions of wetlands.

Note: States should obtain from the Secretary an identification of those waters of the U.S. within the State over which the Corps retains authority under section 404(g) of the Act.

(i) A description of the specific best management practices proposed to be used to satisfy the exemption provisions of section 404(f)(1)(E) of the Act for construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment.

Id. § 233.11. The attorney general's statement, in turn, must confirm “that the laws and regulations of the State, or an interstate compact, provide adequate authority to carry out the program and meet the applicable requirements.” Id. § 233.12(a).

By statute, the EPA has 120 days to evaluate such a state application, “taking into account any comments” submitted by the Corps and the U.S. Fish and Wildlife Service (“FWS”).

33 U.S.C. § 1344(h)(1). The governing regulations provide, however, that this statutory period does not begin to run until the EPA receives a “complete State program submission, ” and they require the EPA to “determine whether [a] submission is complete within 30 days of receipt of the submission.” 40 C.F.R. § 233.15(a); See also Id. § 233.10. Once the EPA determines that an application is complete, the EPA must publish the application in the Federal Register and must solicit input from the Corps, the FWS, and the National Marine Fisheries Service (“NMFS”). Id. § 233.15(d)-(f). The EPA must also provide for a public comment period of “not less than 45 days” and must hold a public hearing within the state. Id. § 233.15(e)(1)-(2).

The EPA has 120 days, in the absence of a request for an extension by the state or an agreement between the state and the EPA to extend that window, to “approve or disapprove the program based on whether the State's program fulfills the requirements of this part and the [Clean Water] Act, taking into consideration all comments received.” Id. § 233.15(c), (g). The specific official tasked with making that decision is the relevant “Regional Administrator.” Id. § 233.15(g); See also Id. § 1.5(a) (explaining that the EPA “consists of Headquarters and 10 Regional Offices, ” each headed by a “Regional Administrator[]”). In deciding whether to approve the state's application, the Regional Administrator must consider “whether the State's program fulfills the requirements of” the Clean Water Act and must take “into consideration all comments received.” Id. § 233.15(g). The Regional Administrator must then “prepare a responsiveness summary of significant comments received and his response to these comments” and must “respond individually to comments received from the Corps, FWS, and NMFS.” Id. If the Regional Administrator approves the state's application, he must “notify the State and the [Corps] of the decision” and must “publish notice in the Federal Register.” Id. § 233.15(h). The “[t]ransfer of the program to the State shall not be considered effective until such notice appears in the Federal Register.” Id. Finally, the Corps is required to “suspend the issuance . . . of [S]ection 404 permits in State regulated waters on [the] effective date.” Id.

If the EPA “fails to make a determination...