Ctr. For Biological Diversity v. U.S. Envtl. Prot. Agency
| Docket Number | Civil Action 22-486 (BAH) |
| Decision Date | 08 August 2023 |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Center for Biological Diversity filed this lawsuit against the U.S. Environmental Protection Agency (“EPA”) and eleven other government defendants challenging EPA's failure to perform statutorily required consultations with the U.S. Fish and Wildlife Services (“FWS”) and the National Marine Fisheries Service (“NMFS”) (hereinafter collectively “the Services”) in accordance with Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536. Defendants agree that EPA failed to complete the required Section 7 consultations before approving Washington state's limits on aquatic cyanide in 1993, 1997, and 2007, pursuant to the Clean Water Act (“CWA”), 33 U.S.C. § 1313(c)(2)(A). Nonetheless, defendants move to dismiss plaintiff's complaint, under Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff's first two claims are time-barred by the six-year statute of limitations, under 28 U.S.C. § 2401(a), and that plaintiff's other two claims fail to assert any ground for relief. For the reasons explained below, defendants' motion is denied as to all four counts.
The factual background and procedural history relevant to the pending motion are described below.
This case implicates two important environmental laws, the ESA and the Clean Water Act (“CWA”), the pertinent requirements of each are summarized. Enacted in 1973, the ESA aimed “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). Since its promulgation, the Act has been coined “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” Id. at 184. To further this end Section 7(a)(2) of the ESA reads:
Each Federal Agency shall . . . insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.
16 U.S.C. § 1536(a)(2). If an agency action “will likely affect” endangered or threatened species and their protected habitats present in the to-be-effected area, the “action agency,” or agency performing the potentially harmful action, “shall consult” with designated federal wildlife services, namely, FWS, a division within the U.S. Department of the Interior, and NMFS, a division of the U.S. Department of Commerce. See id. § 1536(a)-(d); see also id. § 1532(15) (defining the federal wildlife services); 50 C.F.R. § 402.14(a) (); Ctr. for Biological Diversity v. EPA, 56 F.4th 55, 62 (D.C. Cir. 2022) (). Such formal consultation results in the Services producing a “biological opinion” that assesses how the agency action would affect the relevant species and habitats. See 16 U.S.C. § 1536(b); see generally 50 C.F.R. § 402.14(h)(1)(iv) (describing the contents of a biological opinion). If either of the Services concludes that an action will not likely jeopardize a listed species or critical habitat, the biological opinion includes an “incidental take” statement outlining the permitted impact and defining a “prohibited taking.” See 16 U.S.C. § 402.14(i). “Formal consultation is terminated with the issuance of the biological opinion.” 50 C.F.R. § 402.14(m)(1).
In comparison, informal consultation may occur to determine if formal consultation is required. See 50 C.F.R. § 402.13(a). Through this process, the Services “may suggest modifications to the action that the Federal agency and any applicant could implement to avoid the likelihood of adverse effects to listed species or critical habitat.” See id. § 402.13(b). Informal consultation concludes with the Services' issuance of a written concurrence “that the action is not likely to adversely affect listed species or critical habitat.” Id. § 402.13(c).
Consultation must be reinitiated in four circumstances:
The CWA serves to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The Act mandates that states review their water quality standards every three years and report any adopted or revised standards to EPA for approval. See id. § 1313(c)(1)-(2)(A). EPA must notify the state if the standards are approved within sixty days, at which point the state's proposed standard becomes “the water quality standard for the applicable waters of that State.” Id. § 1313(c)(3). If the state's standards do not meet EPA's expectations, the agency must “notify the State and specify the changes to meet such requirements” within ninety days. Id.
In November 1992, the Washington State Department of Ecology (“Washington”) first submitted proposed restrictions on cyanide in freshwater sources in the state. See Compl. ¶ 63. Cyanide is “a toxic compound released into waterways by a variety of anthropogenic activities including urban stormwater runoff, industrial and municipal discharges, deposition from air pollution, and mining.” Id. ¶ 1; accord id. ¶ 57. When exposed to wildlife, namely various species of fish, cyanide can “disrupt[] their metabolism and thus their ability to harness energy” and stunt their capacity to “carry out essential life functions.” Id. ¶ 57; see also id. ¶¶ 58-62 (); Pl.'s Opp'n to Defs.' Mot. to Dismiss (“Pl.'s Opp'n”) at 9-10, ECF No. 21 (describing the same).
To thwart those negative impacts, Washington established freshwater acute criterion (22.0 micrograms of cyanide per liter, or pg/L) and chronic criterion (5.2 pg/L) as well as marine acute criterion (1.0 pg/L) for cyanide-limiting the amount of cyanide permitted in freshwater in the state. See Compl. ¶ 63; Defs.' Mot. to Dismiss ( ) at 4, ECF No. 19. EPA approved Washington's cyanide criteria on March 18, 1993. See Compl. ¶ 64; Defs.' Mot. at 4. Since the state did not submit a marine chronic criterion for review, however, EPA promulgated one under the National Toxics Rule, which imposes national standards for appropriate levels of toxins in water on states that have not submitted their own criteria or had their criteria approved. See 57 Fed.Reg. 60,848 (Dec. 22, 1992) (codified at 40 C.F.R. pt. 131); see Compl. ¶ 65; Defs.' Mot. at 4. Both parties agree that EPA did not consult with either FWS or NMFS under Section 7 of the ESA regarding the approval of Washington's standards or the subsequent promulgation of a marine chronic criterion in the National Toxics Rule. See Compl. ¶ 70; Defs.' Mot. at 4.
Five years later, in 1997, Washington submitted to EPA revised cyanide water quality criteria for marine waters inside the Puget Sound (2.8 pg/L acute and 9.1 pg/L chronic), which the agency approved in 1998 “conditional upon the outcome of the ESA consultations with the Services.” Compl. ¶¶ 66-67; see also Defs.' Mot. at 4. The parties agree that, in 2001, EPA initiated consultation with the Services regarding the revised cyanide criteria. See Compl. ¶ 71; Defs.' Mot. at 4-5. EPA provided a draft biological assessment to the Services in July 2002 that concluded that “cyanide criteria were not likely to adversely affect ESA-listed fish and bird species, but that they may be likely to adversely affect the humpback whale, Stellar sea lion, and leatherback sea turtle.” Compl. ¶ 72. Yet the Services did not issue a final biological opinion regarding EPA's 1998 cyanide criteria approval. Id. ¶ 73; see also Defs.' Mot. at 4-5.
Then again, on August 1, 2003, Washington submitted a cyanide water quality criterion for marine waters outside Puget Sound (1.0 pg/L) that was identical to the one promulgated in the National Toxics Rule. See Compl. ¶ 68. On March 23, 2007, EPA initiated consultation with the Services regarding national criteria for aquatic life pursuant to Section 304(a) of the CWA. See id. ¶ 74. EPA subsequently approved Washington's criterion on May 23 2007, similarly conditioned on the outcome of ESA Section 7 national consultation. See id. ¶ 69. Pursuant to those consultations, the Services then produced draft biological opinions, on January 15, 2010, from FWS, and April 27, 2010, from NMFS, see id. ¶ 78, in which both Services concluded that EPA's proposed approvals of the cyanide criteria “were likely to jeopardize the continued existence of numerous listed species native to Washington State and...
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