Friends of Earth v. U.S. E.P.A., 02-1123.

• Decision Date: 20 June 2003
• Docket Number: No. 02-1124.,No. 02-1123.,02-1123.,02-1124.
• Citation: 333 F.3d 184
• Parties: FRIENDS OF THE EARTH, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

333 F.3d 184

FRIENDS OF THE EARTH, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, United States Environmental Protection Agency, Respondents.

No. 02-1123.

No. 02-1124.

United States Court of Appeals, District of Columbia Circuit.

Argued April 21, 2003.

Decided June 20, 2003.

On Petitions for Review of an Order of the Environmental Protection Agency

Howard I. Fox argued the cause for the petitioner. Keri N. Powell was on brief.

Scott J. Jordan, Attorney, United States Department of Justice, argued the cause for the respondent. Carol A. Siciliano, Attorney, United States Environmental Protection Agency, was on brief.

Alexandra D. Dunn, Stewart T. Leeth and David E. Evans were on brief for amici curiae Association of Metropolitan Sewerage Agencies and DC Water and Sewer Authority in support of the respondent.

Before: GINSBURG, Chief Judge, and EDWARDS and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Petitioner Friends of the Earth (FOE) seeks review of the decision by the Environmental Protection Agency (EPA) to issue limits — known as total maximum daily loads (TMDLs) — on certain pollutants discharged into the upper and lower Anacostia River in the District of Columbia. FOE claims that the Anacostia River TMDLs for biochemical oxygen demand (BOD) and total suspended solids (TSS) violate the Clean Water Act (CWA or Act), 33 U.S.C. §§ 1251 et seq., and its implementing regulations in several respects.¹ EPA challenges these contentions on the merits and, in addition, asserts that this court lacks original jurisdiction to review this sort of agency action. We agree with EPA that we lack jurisdiction and, accordingly, dismiss the petitions for review and transfer the case to the district court for consideration under the judicial review provisions of the Administrative Procedure Act (APA). See 5 U.S.C. §§ 701-706.

I.

The Congress adopted the CWA in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In furtherance of this goal, the Act requires point sources² of pollution to meet certain technology-based effluent limitations.³ Id. § 1311(b)(1)(A)-(B). "[The CWA's] effluent limitation approach focuses on regulating, through the issuance of permits and required technology-based abatement methods, the amount of pollutants discharged by a pollution source." Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 94 (2d Cir.2001) (internal quotations omitted). Because the Congress recognized that the effluent limitation approach could not achieve the Act's objectives alone, however, the CWA also employs a water-quality-based approach to controlling water pollution, requiring states to adopt water quality standards⁴ sufficient "to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter." 33 U.S.C. § 1313(c)(2)(A). If a state does not set water quality standards — or if EPA determines that a state's standards do not meet the requirements of the Act — EPA promulgates the water quality standards for the state. Id. § 1313(b), (c)(3)(4).

If the required effluent limitations are "not stringent enough to implement [the] water quality standard[s] applicable" to a waterbody, the CWA requires that the state "establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters." Id. § 1313(d)(1)(A). For waterbodies so classified, the state is required to establish the "total maximum daily load" for pollutants identified by EPA as suitable for TMDL calculation. Id. § 1313(d)(1)(C). The state must establish each TMDL "at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." Id. Thus, a TMDL represents the maximum amount of pollutant "loadings" that a waterbody may take in without violating applicable water quality standards, taking into account both seasonal variations and a margin of safety.⁵ Each state must then submit its "priority list" and the corresponding TMDLs for EPA approval. Id. § 1313(d)(2). The District of Columbia is considered a "state" for purposes of the CWA. Id. § 1362(3).

Because it violates several of the water quality standards established by the District and approved by EPA,⁶ the Anacostia River has been identified for TMDL development pursuant to section 1313(d)(1)(A). Two of the District's water quality standards are at issue here: the dissolved oxygen standard⁷ and the turbidity standard.⁸ The former sets both daily and hourly minimum oxygen levels for the District's waters, see D.C. MUN. REGS. tit. 21, § 1104.6, while the latter establishes the District's standards relating to water clarity, see id. §§ 1104.1, 1104.7, 1105.5. In December 2001, the EPA approved a TMDL — submitted by the District — addressing the dissolved oxygen standard. Shortly thereafter, in March 2002, EPA established a second TMDL addressing the District's turbidity standard. Upon the issuance of EPA's final decisions, FOE petitioned this court for review of both TMDLs, claiming that they are inadequate to achieve the District's water quality standards.

II.

EPA has moved to dismiss FOE's petitions, arguing that we lack subject matter jurisdiction under 33 U.S.C. § 1369(b)(1) to review the approval or establishment of TMDLs made pursuant to section 1313(d). Emphasizing that actions taken under section 1313 are not included among the listed actions expressly made directly reviewable by the courts of appeals under section 1369(b)(1), EPA maintains that challenges to the approval or establishment of TMDLs must be brought — if at all — in district court under the APA. FOE reads the CWA's jurisdictional provision in a decidedly different fashion, arguing that EPA's approval and establishment of TMDLs fall within the "plain scope" of section 1369(b)(1)(E). Br. for Pet'r at 14. In its view, both the plain terms of the Act as well as United States Supreme Court and D.C. Circuit precedent compel the conclusion that TMDLs are "effluent limitation[s] or other limitation[s] under section 1311," 33 U.S.C. § 1369(b)(1)(E), and that, as a result, direct review of EPA's actions comes within our jurisdiction. We are not persuaded by the petitioner's argument.

"A federal court's subject-matter jurisdiction, constitutionally limited by [A]rticle III, extends only so far as [the] Congress provides by statute." Commodity Futures Trading Comm'n v. Nahas, 738 F.2d 487, 492 (D.C.Cir.1984) (citing Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02, 102 S.Ct. 2099, 2103-04, 72 L.Ed.2d 492 (1982)). Our original jurisdiction to review EPA actions taken pursuant to the CWA is governed by 33 U.S.C. § 1369(b)(1).⁹ Of relevance here, section 1369(b)(1)(E) provides for direct review in the court of appeals of EPA action "in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title." 33 U.S.C. § 1369(b)(1)(E). Although EPA's authority to approve and establish TMDLs is provided for under section 1313 — a statutory provision not among those listed in section 1369(b)(1)(E) — FOE argues that the plain terms of the Act compel the conclusion that TMDLs constitute "effluent limitation[s] or other limitation[s] under section 1311." Id. (emphasis added).¹⁰ However, "[i]n view of the specificity of the [CWA's] judicial review provision, [the] omission [of section 1311] presents [FOE] with considerable difficulty in establishing jurisdiction in this court." Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 514 (2d Cir.1976) (appellate court lacked jurisdiction to review EPA action, taken pursuant to section 1313, partially approving New York's thermal water quality standards); see also Original Honey Baked Ham Co. of Ga. v. Glickman, 172 F.3d 885, 887 (D.C.Cir.1999) ("A statute listing the things it does cover exempts, by omission, the things it does not list.").

The statutory basis for FOE's argument is section 1311(b)(1)(C), which requires that there be achieved, "not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance ... required to implement any applicable water quality standard established pursuant to this chapter." 33 U.S.C. § 1311(b)(1)(C). Asserting that TMDLs are both "more stringent limitation[s]" and limitations "necessary to meet water quality standards,"¹¹ id., FOE maintains that TMDLs are thus properly considered limitations "under section 1311," id. § 1369(b)(1)(E). It therefore reasons that section 1369(b)(1)(E) provides the courts of appeals with original jurisdiction to review EPA's approval and establishment of TMDLs.

As EPA correctly observes, however, the courts of appeals have consistently held that the express listing of specific EPA actions in section 1369(b)(1) precludes direct appellate review of those actions not so specified. See, e.g., City of Baton Rouge v. EPA, 620 F.2d 478, 480 (5th Cir.1980) ("Thus, the rule is clear: the [c]ourts of [a]ppeals have jurisdiction for direct review only of those EPA actions specifically enumerated in 33 U.S.C. § 1369(b)(1)."); Bethlehem Steel, 538 F.2d at 517 ("[T]he complexity and specificity of section [1369(b)(1)] in identifying what actions of EPA under the [CWA] would be reviewable in the courts of appeals suggests that not all such actions are so reviewable."); see also Minn. Center for Envtl. Advocacy v. EPA, No. 03-1636 (8th Cir. April 28, 2003) (dismissing challenge to EPA's approval of TMDL for want of jurisdiction); Alcoa, Inc. v. EPA, No. 02-13562-II (11th Cir. Oct. 16, 2002...