Fla. Wildlife Fed'n, Inc. v. Jackson
| Decision Date | 18 February 2012 |
| Docket Number | Case No. 4:11cv51–RH/WCS.,Former Cases No. 3:10cv513–MCR/MD.,Former Cases No. 3:10cv503–RV/MD.,Former Cases No. 3:10cv532–MCR/EMT.,Case No. 4:09cv428–RH/WCS.,Case No. 4:08cv324–RH/WCS.,Case No. 4:11cv142–RH/WCS.,Former Cases No. 3:10cv506–RV/EMT.,Former Cases No. 3:11cv11–MCR/MD.,Former Cases No. 3:11cv47–MCR/EMT.,Case No. 4:11cv177–RH/WCS.,Case No. 4:11cv61–RH/WCS.,Case No. 4:10cv511–RH/WCS. |
| Parties | FLORIDA WILDLIFE FEDERATION, INC. et al., Plaintiffs, v. Lisa P. JACKSON, etc., et al., Defendants. The Florida Water Environmental Association Utility Council, Inc., v. Lisa P. Jackson, etc., et al., Defendants. The Florida Electric Power Coordinating Group, Inc., Plaintiff, v. Lisa P. Jackson, etc., et al., Defendants. Florida Wildlife Federation, Inc., et al., Plaintiffs, v. The United States Environmental Protection Agency et al., Defendants. The Fertilizer Institute et al., Plaintiffs, v. United States Environmental Protection Agency, Defendant. Gulf Restoration Network et al., Plaintiffs, v. United States Environmental Protection Agency et al., Defendants. The Florida Cattlemen's Association et al., Plaintiffs, v. Lisa P. Jackson et al., Defendants. State of Florida, etc., et al., Plaintiffs, v. Lisa P. Jackson, etc., et al., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
OPINION TEXT STARTS HERE
David G. Guest, Monica Kidd Reimer, Earthjustice, James Steven Alves, Mohammad Omar Jazil, Winston Kirk Borkowski, David William Childs, Hopping Green & Sams PA, William Douglas Preston, William D. Preston, William Robert Vezina, III, Vezina Lawrence & Piscitelli PA, Terry Cole, Gunster Yoakley & Stewart, Tallahassee, FL, David Yolun Chung, Crowell & Moring LLP, Washington, DC, Albert Franklin Ettinger, Chicago, IL, for Plaintiffs.
Robert Del Stinson, U.S. Attorney, David G. Guest, Earthjustice, Kevin X. Crowley, Pennington Moore Wilkinson Etc., Tallahassee, FL, Martha Collins Mann, Department of Justice, Karen Marie Hansen, Beveridge & Diamond PC, Washington, DC, Matthew Calieb Mitchell, Brannon Brown Haley Etc, Lake City, FL, Amy Wells Brennan, Southwest FL Water Management District, Brooksville, FL, for Defendant.
ORDER ON THE MERITS
The Administrator of the Environmental Protection Agency has adopted numeric criteria for nutrients—primarily nitrogen and phosphorous—in Florida lakes, springs, and streams (including rivers). These cases, which have been consolidated for case-management purposes, present a series of challenges to the Administrator's actions. Some parties assert the Administrator did too much; some assert she did too little. This order upholds the Administrator's determination that numeric nutrient criteria are necessary for Florida waters to meet the Clean Water Act's requirements, upholds the Administrator's lake and spring criteria, invalidates the stream criteria, upholds the decision to adopt downstream-protection criteria, upholds some but not all of the downstream-protection criteria, and upholds the Administrator's decision to allow—and the procedures for adopting-site-specific alternative criteria.
This order begins with a summary of the ruling (section I). The order then sets out the background, addressing the most relevant Clean Water Act requirements (section II), the designated uses of Florida waters under the Clean Water Act (section III), the problem at issue—nutrient pollution (section IV), Florida's existing narrative criterion for nutrients (section V), EPA's call for numeric nutrient criteria (section VI), the Florida Department of Environmental Protection's work on numeric nutrient criteria (section VII), the Administrator's 2009 determination that Florida's narrative nutrient criterion is inadequate and that numeric nutrient criteria are necessary to meet the Clean Water Act's requirements (section VIII), and the Administrator's adoption of a rule setting numeric criteria (section IX). The order then summarizes the litigation (section X), the substantive issues (section XI), and the standard of review (section XII), before turning to the merits (section XIII).
The grounds for the decision include these. The Clean Water Act requires a state—or if it fails to act, EPA—to adopt water-quality “criteria” to protect a state's designated “uses” of its waters. The criteriamust be based on sound science. The Florida Department of Environmental Protection adopted long ago a narrative criterion for nutrients: “nutrient concentrations of a body of water [must not] be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” Fla. Admin. Code r. 62–302.530(47)(b).
The narrative criterion has proved insufficient to control Florida's widespread nutrient pollution. The Administrator recognized at least as early as 1998 that the narrative criterion is insufficient and that numeric criteria should be adopted. The Florida Department of Environmental Protection agreed at least as early as 2003. In the ensuing years, neither has wavered from that view. FDEP worked toward the adoption of numeric criteria for many years but repeatedly moved back the projected completion date. In 2009 the Administrator made an explicit “determination” under Clean Water Act § 303(c)(4), 33 U.S.C. § 1313(c)(4), that new criteria—numeric criteria—are necessary to meet the Act's requirements. The determination imposed on the Administrator an explicit statutory duty to promptly propose and adopt new criteria unless Florida did so first. Id. Florida did not.
The Administrator's determination was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is the standard under which a court reviews an administrative decision of this kind. For convenience, this opinion uses “arbitrary or capricious” as shorthand for the entire standard.
The Administrator adopted lake and spring criteria based on modeling and field studies designed to determine the level at which an increase in nutrients ordinarily causes harmful effects. The criteria are based on sound science and are not arbitrary or capricious.
The Administrator was unable to develop acceptable stream criteria based on modeling and field studies and so adopted stream criteria using a different approach. She identified a representative sample of minimally-disturbed streams for which nutrient data were available, calculated annual geometric means for each stream and in turn for the sample set of streams, and set the criteria at the 90th percentile. The Administrator apparently concluded only that an increase above this level ordinarily causes a change in flora and fauna—not that it causes a harmful change. If there is a basis in sound science for disapproving a nutrient increase that causes any increase in flora and fauna, not just a harmful increase, the Administrator did not cite it. And even if the Administrator's conclusion was that an increase in nutrients to a level above the 90th percentile ordinarily causes a harmful change in flora and fauna, the Administrator again did not cite a sound-science basis for the conclusion. Without a further explanation, the stream criteria are arbitrary or capricious.
The Administrator adopted downstream-protection criteria that she referred to as “downstream protection values” or “DPVs.” The goal was to protect a water body—in this case, a lake—from nutrient pollution introduced through upstream waters. The decision to adopt DPVs was not arbitrary or capricious. The Administrator allowed DPVs to be set through modeling or, in the absence of modeling, at one of two “default” levels. For a lake not in compliance with the lake criteria—an impaired lake—the default DPVs are the same as the lake criteria. Neither the provision for DPVs based on modeling nor the default DPVs for an impaired lake are arbitrary or capricious. But the default DPVs for a lake that is in compliance with the lake criteria—an unimpaired lake—suffer from a flaw analogous to that in the stream criteria. The default DPVs for an unimpaired lake are the ambient conditions at the “pour point”—the point at which the stream enters the lake. The Administrator's theory apparently is that any increase from ambient conditions ordinarily causes a change in flora and fauna—not that it causes a harmful change. Here, as with the stream criteria, the Administrator has cited no basis in sound science for disapproving any nutrient increase, not just a nutrient increase that causes a harmful increase in flora or fauna.
The Administrator authorized—and established a procedure for adopting—site-specific alternative criteria (“SSACs”) that take the place of the otherwise-applicable criteria for a specific water body or set of water bodies (such as a watershed). SSACs must be based on sound science and must protect designated uses. The decision to authorize SSACs—and to establish this procedure for adopting them—was not arbitrary or capricious. Some parties assert that the regulation would allow SSACs for a set of water bodies so extensive that, under the governing law, the SSACs could properly be adopted only through rulemaking, not through the more-abbreviated SSAC procedures. The assertion is not ripe for judicial review at this time, because no such SSAC has been proposed or adopted, and there is no reason to believe one ever will be.
Finally, some parties challenge the Administrator's actions on other grounds, asserting that Congress unconstitutionally delegated authority to the Administrator, that the Administrator unconstitutionally discriminated against Florida and Florida residents, and that the Administrator violated the Regulatory Flexibility Act. These assertions are incorrect.
Congress adopted the Clean Water Act in 1972. The objective was “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The Act recognizes the primary responsibility of the states to prevent or reduce pollution. Id. § 1251(b). The Act thus...
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