Natural Resources Defense Council v. U.S. E.P.A.

• Decision Date: 18 September 2008
• Docket Number: No. 07-55183.,No. 07-55261.,07-55183.,07-55261.
• Citation: 542 F.3d 1235
• Parties: NATURAL RESOURCES DEFENSE COUNCIL; Waterkeeper Alliance, Plaintiffs-Appellees, and State of Connecticut; New York State Department of Environmental Conservation; State of New York, Plaintiffs-intervenors-Appellees, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Stephen L. Johnson, Defendants-Appellants, and National Association of Home Builders; Associated General Contractors of America, Defendants-intervenors-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

542 F.3d 1235

NATURAL RESOURCES DEFENSE COUNCIL; Waterkeeper Alliance, Plaintiffs-Appellees, and State of Connecticut; New York State Department of Environmental Conservation; State of New York, Plaintiffs-intervenors-Appellees, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Stephen L. Johnson, Defendants-Appellants, and National Association of Home Builders; Associated General Contractors of America, Defendants-intervenors-Appellants.

No. 07-55183.

No. 07-55261.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 2008.

Filed September 18, 2008.

Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. No. CV-04-08307-GHK.

Robert Lundman, United States Department of Justice, Washington, D.C., for the defendants-appellants.

Jeffrey Longworth, Barnes & Thornburg LLP, Washington, D.C., for the defendants-intervenors-appellants.

Kim Landsman, Patterson Belknap Webb & Tyler LLP, New York, NY, & Melanie Shepherdson, National Resources Defense Council, Washington, D.C., Layne Friedrich, Lawyers for Clean Water, Inc., San Francisco, CA, for the plaintiffs-appellees.

Douglas P. Carstens, Chatten Brown & Carstens, Santa Monica, CA, & Richard Dearing, State of New York, New York, NY, for the plaintiffs-intervenors-appellees.

Before: BARRY G. SILVERMAN, JOHNNIE B. RAWLINSON, and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

Plaintiffs-Appellees, National Resources Defense Council (NRDC) and Waterkeeper Alliance Inc. (collectively, NRDC), sued Defendants-Appellants, the United States Environmental Protection Agency and its administrator (collectively, EPA), under the Clean Water Act (CWA) and the Administrative Procedure Act (APA), seeking to compel the EPA to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for storm water pollution discharges caused by the construction and development industry (construction industry). The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-intervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA.

The district court exercised its jurisdiction under the Clean Water Act's citizen-suit provision, CWA § 505(a)(2), 33 U.S.C. § 1365(a)(2),¹ denied Defendants' motion to dismiss, granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry, and issued a permanent injunction compelling the EPA to do so.² We have jurisdiction to review these decisions under 28 U.S.C. §§ 1291 and 1292(a), and we affirm.

BACKGROUND

A. Statutory Background

Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In furtherance of the CWA's objective of eliminating the "discharge of pollutants into the navigable waters," id., the Act prohibits the "discharge of any pollutant." CWA § 301(a), 33 U.S.C. § 1311(a). The CWA defines the "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." CWA § 502(12), 33 U.S.C. § 1362(12). A "point source" is "any discernable, confined and discrete conveyance, including but not limited to[,] any pipe, ditch, channel ... from which pollutants are or may be discharged." CWA § 502(14).

Despite § 301(a)'s general prohibition on the discharge of pollutants, the CWA also establishes a permit system that authorizes the discharge of some pollutants—the National Pollutant Discharge Elimination System (NPDES). See CWA § 402, 33 U.S.C. § 1342. Under the NPDES, the EPA and approved states may issue permits for the discharge of pollutants that meet certain requirements outlined in § 402. Taken together, §§ 301(a) and 402 "`prohibit[ ] the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.'" N.W. Envt'l Advocates v. EPA, 537 F.3d 1006, 1010 (9th Cir.2008) (quoting N. Plains Res. Council v. Fidelity Exploration & Dev. Co., 325 F.3d 1155, 1160 (9th Cir.2003)).

NPDES permits "place limits on the type and quantity of pollutants that can be released into the Nation's waters," S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004), and must set forth "effluent limitations," OCEF, 527 F.3d at 848. "Effluent limitations" are "restriction[s] ... on [the] quantit[y], rates, and concentration[ ] of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters." CWA § 502(11).

The specific effluent limitations in an NPDES permit are determined according to the more general ELGs and NSPSs, guidelines that are separately promulgated by the EPA. CWA § 304(b), 33 U.S.C. § 1314(b); CWA § 306(b), 33 U.S.C. § 1316(b); E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 116-17, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). ELGs are technology-based restrictions on water pollution that apply to sources of pollution already in existence, see CWA § 304(b); NSPSs are technology-based restrictions that apply to "new sources" of pollution. CWA § 306(a)(2). "A technology-based approach to water quality focuses on the achievable level of pollutant reduction given current technology." OCEF, 527 F.3d at 845; see also Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491-92 (2d Cir.2005) (stating that ELGSs and NSPSs "are technology-based, because they are established in accordance with various technological standards that the Act statutorily provides" —for example, "the best available technology economically achievable" or "the best conventional pollutant control technology"—and that these standards "vary depending upon the type of pollutant involved, the type of discharge involved, and whether the point source in question is new or already existing").

Section 304(m) provides that, every two years, the EPA "shall publish in the Federal Register a plan which shall ... identify categories of sources discharging toxic or nonconventional pollutants" for which ELGs and NSPSs have not yet been published, and "establish a schedule for promulgation of effluent guidelines for categories identified." Under this schedule, the "promulgation of [these] guidelines shall be no later than ... 3 years after the publication of the plan." Id. ELGs and NSPSs are relevant to this appeal because the Plaintiffs claim that the EPA violated a non-discretionary duty to promulgate ELGs and NSPSs for the construction industry after it was listed as a point-source category in a plan developed under § 304(m).

B. Administrative Proceedings

In March 1999, the EPA announced that it was undertaking rulemaking to address pollution from storm water discharge associated with construction activities, "specifically for new development, as well as to those associated with redevelopment activities." 64 Fed.Reg. 15,158, 15,158 (March 30, 1999). In its public notice, the EPA stated that it "chose to begin development of [ELGs] for the construction and development industry[, in relevant part,] to support applicable state and local requirements for erosion and sediment controls and storm water best management practices," because "[s]tate and local requirements vary widely [and][s]ediment loadings from construction site discharges can be orders of magnitude higher than those associated with discharges from undisturbed areas," and also because "construction site runoff can contribute high loadings of nutrients and metals to receiving streams." Id. In 2000, the EPA published its final notice of an effluent guidelines plan, which listed construction activities as a point-source category requiring guidelines under § 304(m). 65 Fed.Reg. 53,008, 53,011 (Aug. 31, 2000).

On June 24, 2002, the EPA issued a proposed rule to address storm water discharge from construction sites. 67 Fed. Reg. 42,644, 42,644 (June 24, 2002). The EPA did not set forth a single proposed rule, but described three "options" it was considering. "Option 1" was to establish "minimum requirements for conducting site inspections and providing certification as to design and completion of controls required by" the authority issuing NPDES permits. Id. at 42,646. "Option 2" would establish ELGs as well as the minimum requirements comprising Option 1. Id. "Option 3" would establish "no new requirements," and "[b]oth the control requirements and the certification requirements would be left to the best professional judgment of the permitting authority." Id.

On April 26, 2004, the EPA published its final action under the caption "Proposed Rule: Withdrawal." 69 Fed.Reg. 22,472, 22,472 (April 26, 2004). The EPA stated: "[t]his action withdraws the proposed [ELGs and NSPSs] that EPA proposed for the construction and development industry" on June 24, 2002. Id. at 22,473. It further stated, "[w]e have decided not to promulgate [ELGs] and standards for the construction and development industry and instead have selected the option [Option 3] that relies on the range of existing programs, regulations, and initiatives at the Federal, State, and local level for the control of storm water runoff from construction sites." Id. at 22,477.

The EPA explained its decision "not to promulgate[ELGs] and standards" by stating that it believed that construction site storm water discharges were already "being adequately addressed" because the "existing NPDES" regulations require permits for the vast majority of construction sites nationwide, and that the cost was "simply too high and ... disproportionately large" given the reductions that would be attributable to the proposed ELGs. Id. The EPA had determined that the annual cost of the proposed ELGs...