Natural Resources Defense Council, Inc. v. Fox

Decision Date12 November 1998
Docket NumberNo. 94 CIV. 8424(PKL).,94 CIV. 8424(PKL).
Citation30 F.Supp.2d 369
PartiesNATURAL RESOURCES DEFENSE COUNCIL, INC., Environmental Defense Fund, Inc., and Alan G. Hevesi, Plaintiffs, v. Jeanne FOX, Regional Administrator, United States Environmental Protection Agency, Region II, Carol Browner, Administrator, United States Environmental Protection Agency, and United States Environmental Protection Agency, Defendants.
CourtU.S. District Court — Southern District of New York

Mary Jo White, United States Attorney Southern District of New York, New York (Manvin S. Mayell, of counsel), for Defendants.

OPINION AND ORDER

LEISURE, District Judge.

This case involves the alleged failure for the past nineteen years of the State of New York to establish pollution limits, known as total maximum daily loads ("TMDLs"), for waterbodies in the State. Plaintiffs bring this action against the United States Environmental Protection Agency and two of its administrators (collectively, "EPA"), pursuant to the Clean Water Act ("Act"), 33 U.S.C. §§ 1251, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 501, et seq., alleging that in the face of New York State's failure to act, EPA has unlawfully failed to intervene and establish the TMDLs itself. Plaintiffs raise a number of other related claims, including that EPA has acted arbitrarily and capriciously regarding New York State's recent putative TMDL submissions for reservoirs supplying drinking water to New York City.

By Opinion and Order dated December 11, 1995, the Court ruled, inter alia, that (i) New York State's alleged failure to submit TMDLs could trigger nondiscretionary duties of EPA to intervene, and (ii) genuine issues of material fact exist as to whether certain of New York State's submissions to EPA constitute TMDLs, and, even if they do, whether EPA nonetheless must intervene. See Natural Resources Defense Council, Inc. v. Fox, 909 F.Supp. 153, 156-158 (S.D.N.Y. 1995) [hereinafter "NRDC"].

EPA now moves for judgment on the pleadings that EPA's duty to intervene is discretionary and that plaintiffs are, therefore, precluded from seeking to enforce that duty under either the Clean Water Act or the APA. Alternatively, EPA moves for summary judgment that EPA's duty, even if mandatory, need not be fulfilled because New York State has recently made progress in submitting TMDLs. EPA also seeks judgment on plaintiffs' other remaining claims.

For the reasons stated in this Opinion, EPA's motion is GRANTED in part and DENIED in part.

BACKGROUND

The Court presumes familiarity with the discussion of the Clean Water Act's statutory scheme in its previous decision in this action. See NRDC, 909 F.Supp. at 156-157. Accordingly, only those elements of the Clean Water Act pertinent to the motion presently before the Court are set forth here.

The instant case involves Section 303(d) of the Clean Water Act, which regulates waterbodies failing to meet water quality standards even upon application of technological pollution controls. See 33 U.S.C. § 1313(d)(1)(A). States are required to create a prioritized list of such waterbodies, and, in accordance with the priority list, to establish TMDLs for each waterbody concerning pollutants specified by EPA. See 33 U.S.C. §§ 1313(d)(1)(A) & (C).

The Act sets forth a general directive as to the required components of a TMDL:

Such load shall be established 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. § 1313(d)(1)(C). EPA regulations further provide that a TMDL shall consist of the sum of: (i) the loading allotments for existing and future point sources of pollution1 (known as "wasteload allocations"), and (ii) the loading allotments for existing and future nonpoint sources of pollution and natural background sources of pollution (known as "load allocations"). See 40 C.F.R. §§ 130.2(e)-(i).

The Act provides that states "shall submit" the prioritized lists of waterbodies and accompanying TMDLs "from time to time, with the first such submission not later than one hundred and eighty days after" EPA identifies relevant pollutants. See 33 U.S.C. § 1313(d)(2).

Upon receipt of lists and/or TMDLs, EPA "shall either approve or disapprove [them] ... not later than 30 days after the date of submission." Id. § 1313(d)(2). Should EPA disapprove either a list of waterbodies or a TMDL,

[it] shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as [it] determines necessary to implement the water quality standards applicable to such waters ....

Id.

Principally at issue in the instant case is New York State's alleged failure to submit TMDLs to EPA for review. The Clean Water Act does not expressly address what, if any, duty EPA has in that situation. See id. § 1313(d). Courts, including this Court, have read into the Act a requirement that EPA treat such state inaction as a so-called "constructive submission" of a deficient TMDL, triggering EPA's explicit mandatory duties under the Act to disapprove the "submission", id. § 1313(d)(2), and to establish TMDLs for the state, id. See NRDC, 909 F.Supp. at 157 (explaining doctrine and listing cases).

The remaining claims in the case, also addressed in this Opinion, concern EPA's treatment of New York State's 1997 submissions of putative TMDLs, and EPA's conduct in fulfilling its alleged general duty to "oversee and effectuate" implementation of § 303(d) of the Clean Water Act.

DISCUSSION
I. Failure to Deem New York State's Alleged Inaction a "Constructive Submission" of Deficient TMDLs

States' initial TMDLs and lists of waterbodies were due on June 26, 1979. See NRDC, 909 F.Supp. at 157. Plaintiffs allege New York State, despite this due date, neglected for almost two decades to submit any TMDLs to EPA for review. Plaintiffs further allege that following plaintiffs' initiation of the instant lawsuit, the State has made only token efforts to comply with its TMDL obligations. The State's alleged evasion of the Act's requirements should, according to plaintiffs, be deemed a "constructive submission" of deficient TMDLs to EPA, triggering EPA's duty to intervene and to promulgate the TMDLs. Plaintiffs contend EPA has failed to comply with these nondiscretionary duties in violation of the Clean Water Act and the APA.

EPA argues it is entitled to judgment on plaintiffs' claims under the Clean Water Act and APA because EPA's duty to intervene is discretionary and, thus, may not be reviewed under either statute. In the alternative, EPA asserts it is entitled to summary judgment because New York State's recent submissions of TMDLs eliminate any arguably nondiscretionary duty of EPA to intervene. The Court considers EPA's arguments with respect to plaintiffs' Clean Water Act claim and APA claim, respectively.

A. Clean Water Act Claim

EPA asserts its duty to intervene is discretionary and, therefore, cannot be enforced under the citizen suit provisions of the Clean Water Act. Plaintiffs respond that the law of the case embodied in the Court's previous decision in this action precludes EPA from raising its argument at this stage of the proceedings. Plaintiffs further contend that, in any case, EPA's intervention duty is mandatory.

Because the parties did not previously litigate the specific issue now raised by EPA and because that issue concerns the Court's jurisdiction to hear plaintiffs' claim under the Clean Water Act, the Court finds the law of the case doctrine does not preclude consideration of EPA's argument. Furthermore, upon consideration of EPA's argument, the Court finds it lacks subject matter jurisdiction over plaintiffs' claim under the Clean Water Act because EPA has discretion as to when to deem state inaction a "constructive submission".

1. Law of the Case

The law of the case doctrine provides that "when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case." United States v. Uccio, 940 F.2d 753, 758 (2d Cir.1991). The doctrine seeks to ensure fair treatment of the parties and to promote judicial efficiency and finality of the proceedings by avoiding duplicative decision-making. See County of Suffolk v. Stone & Webster Eng'g Corp., 106 F.3d 1112, 1117 (2d Cir.1997).

Generally, the presumption in favor of letting previous decisions stand may be overcome only by a compelling justification such as "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Doe v. New York City Dep't of Soc. Serv., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983) (internal quotations and citation omitted). The law of the case doctrine is not, however, a mandatory rule of decision; instead, it "merely expresses a general reluctance, absent good cause, to reopen rulings that the parties have relied upon." Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 564 (2d Cir.1998); see also Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d Cir.1996) ("the `law of the case' doctrine is `discretionary and does not limit a court's power to reconsider its own decision prior to final judgment.'") (quoting DiLaura v. Power Auth. of State of New York, 982 F.2d 73, 76 (2d Cir.1992)).

The Court held in its previous decision in this action that state failure to establish TMDLs could be considered a "constructive submission" of deficient TMDLs, triggering mandatory duties of EPA to intervene. See NRDC, 909 F.Supp. at 157-60. In so holding, the Court relied on the decisions...

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