Natural Resources Defense Council, Inc. v. Fox, No. 94 Civ. 8424(PKL).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtLeisure
Citation93 F.Supp.2d 531
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.
Decision Date02 May 2000
Docket NumberNo. 94 Civ. 8424(PKL).
93 F.Supp.2d 531
NATURAL 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.
No. 94 Civ. 8424(PKL).
United States District Court, S.D. New York.
May 2, 2000.

Page 532

Natural Resources Defense Council, Inc., New York City (Mark A. Izeman, Eric A. Goldstein, of counsel), for plaintiffs.

Mary Jo White, United States Attorney, New York City (Andrew W. Schilling, of counsel), for defendants.

OPINION AND ORDER

LEISURE, District Judge.


This case involves the alleged failure for the past twenty 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

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this action against the United States Environmental Protection Agency and two of its administrators (collectively, "EPA"), pursuant to the Clean Water Act ("CWA"), 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 related claims, including that EPA has acted arbitrarily and capriciously with respect to New York State's 1997 submission of proposed TMDLs for reservoirs that supply 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"].

By Opinion and Order dated November 12, 1998, the Court granted partial summary judgment to defendants, dismissing all but one of plaintiffs' Clean Water Act claims, but denying summary judgment on plaintiffs' claims under the Administrative Procedure Act. See Natural Resources Defense Council, Inc. v. Fox, 30 F.Supp.2d 369 (S.D.N.Y.1998) [hereinafter, "NRDC II"]. Subsequently, the parties agreed to submit these remaining claims to the Court for final judgment. The parties' final briefs were fully submitted on April 9, 1999.

BACKGROUND

The Court presumes familiarity with the discussion of the Clean Water Act's statutory scheme in its previous decisions in this action. See NRDC II, 30 F.Supp.2d. at 373-74; NRDC, 909 F.Supp. at 156-57. Accordingly, only those elements of the Clean Water Act pertinent to the motions 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 so-called technological pollution controls. See 33 U.S.C. § 1313(d)(1)(A). States are required to create a prioritized list of such waterbodies, and, upon EPA's approval of 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 prescribes the basic elements 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). The parties do not dispute that the states' initial TMDLs and lists of waterbodies were due on June 26, 1979. See NRDC, 909 F.Supp. at 157.

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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 duty, if any, EPA bears under such circumstances. See id. § 1313(d). This Court and others 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).

In NRDC II, the Court identified the issues to be decided in the final stage of this action, and in April 1999 the parties submitted the record upon which the Court will adjudicate plaintiffs' remaining claims. The administrative record ("AR"), dated January 8, 1998, consists of the evidence relied upon by EPA in its April 2, 1997, actions upon proposed TMDLs submitted by New York State, and provides the basis for the Court's review of plaintiffs' Claims Nine, Ten, and Eleven. The joint appendix ("JA") is a compendium of documents compiled jointly by the parties to assist the Court in its adjudication of Claims Six, Seven, Twelve, and Thirteen.

Of the thirteen claims enumerated in plaintiffs' Fourth Amended Complaint, only seven remain to be decided by the Court.2 What had its origin as a Clean Water Act case is now primarily a suit under the Administrative Procedure Act. But while these APA claims are legally and analytically distinct from the original CWA claims, the underlying facts and plaintiffs' concerns remain the same. The Court briefly outlines these remaining claims.

Claims Six and Seven respectively seek judicial review under the APA of EPA's alleged failure "to formally disapprove New York State's TMDL submissions due from time to time," and its alleged failure "to formally establish and promulgate TMDLs applicable to WQLSs in New York State." Fourth Am.Compl. at ¶¶ 54-55.

Claim Nine seeks APA review of EPA's alleged failure "to disapprove facially-inadequate TMDLs for eight New York City reservoirs submitted by New York State to EPA on January 31, 1997." Id. at ¶ 57.

Claims Ten and Eleven allege, respectively, that EPA breached a mandatory duty under the Clean Water Act, and should be compelled to act pursuant to the APA, for its failure to "approve or disapprove purported TMDLs for 10 New York City reservoirs submitted by New York State to EPA on January 31, 1997." Id. at ¶¶ 58-59.

Claims Twelve and Thirteen allege, respectively, that EPA breached its mandatory duties under the Clean Water Act, and should be compelled to act pursuant to the APA, for failing since 1979 "to oversee and effectuate the § 303(d) program in New York State as set forth in paragraph[s] 28-37e of this [Fourth] Amended Complaint." Id. at ¶¶ 60-61.

Plaintiffs seek injunctive relief in the form of a "binding, but reasonable, schedule

Page 535

for bringing Federal Defendants (and New York State) into compliance with the statutory scheme." Pls.' Br. at 65. More specifically, plaintiffs ask the Court for an order directing EPA: i) to establish TMDLs for all waterbodies on New York's 1998 § 303(d) list pursuant to a court-ordered timetable; ii) to promulgate TMDLs for the eight New York City reservoirs for which EPA has approved New York's proposed TMDLs; iii) to approve or disapprove the remaining ten reservoir TMDLs within 30 days of the entry of judgment in this case; iv) to review New York State's Continuing Planning Process; and v) to serve upon the Court and upon plaintiffs semi-annual progress reports regarding EPA's compliance with the proposed order. See id. at 68-69. Plaintiffs also ask the Court to retain jurisdiction over this case "for a period of time necessary to insure compliance with the above-sought relief, to consider any additional motions that may be brought, and to consider an application for an award of fees and costs." Id. at 69.

DISCUSSION

I. Standard of Decision

Pursuant to Fed.R.Civ.P. 52(a), the parties have filed cross-motions for final judgment on the pleadings now before the Court. Rule 52(a) permits the Court, with the consent of the parties, to decide a case without a formal trial "based on the record compiled in summary judgment proceedings." Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142 (2d Cir.1998).

In NRDC II, the Court responded to plaintiffs' repeated suggestion that they were entitled to "trial" of their claims, noting that "a full trial may be inappropriate in the instant case," given the Supreme Court's directive that "`the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.'" NRDC II, 30 F.Supp.2d at 384 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (percuriam)). The Court invited the...

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16 practice notes
  • Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 2009
    ...has been unlawfully withheld or unreasonably delayed." Sierra Club v. U.S. EPA, 162 F.Supp.2d 406, 411 (D.Md.2001) (citing NRDC v. Fox, 93 F.Supp.2d 531 (S.D.N.Y. 2000)). Therefore, OVEC's NWP 21 (2002) claims are moot unless an exception A well-established exception to mootness exists in c......
  • Rodriguez v. Nielsen, 16-CV-7092 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 30, 2018
    ...an adjudication under section 1184(p)(6) EAD Pending Petition has been unlawfully withheld.20 See Nat. Res. Def. Council, Inc. v. Fox, 93 F. Supp. 2d 531, 543 (S.D.N.Y. 2000) (finding "the components of § 706(1) — 'unreasonably delayed' and 'unlawfully withheld' — are mutually exclusive." (......
  • Raymond Proffitt Found v. U.S. Army Corps of Eng., No. CIV. A. 99-4038.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 22, 2000
    ...agency action and remanding to the agency for additional investigation and explanation. See generally 5 U.S.C. § 706; NRDC v. Fox, 93 F.Supp.2d 531, 536 Section 706(1) of the APA gives the court power to review agency inaction and, if unlawful, to compel action. See 5 U.S.C. § 706(1). Secti......
  • Sierra Club v. U.S. E.P.A., No. CIV.A. WMN-97-3838.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 10, 2001
    ...394 (1976). Plaintiffs bear the burden of overcoming this presumption of validity. See Natural Resources Defense Council, Inc. v. Fox, 93 F.Supp.2d 531, 538 (S.D.N.Y. 2000) (citing Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981)). The reviewing court cannot simp......
  • Request a trial to view additional results
14 cases
  • Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 2009
    ...has been unlawfully withheld or unreasonably delayed." Sierra Club v. U.S. EPA, 162 F.Supp.2d 406, 411 (D.Md.2001) (citing NRDC v. Fox, 93 F.Supp.2d 531 (S.D.N.Y. 2000)). Therefore, OVEC's NWP 21 (2002) claims are moot unless an exception A well-established exception to mootness exists in c......
  • Rodriguez v. Nielsen, 16-CV-7092 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 30, 2018
    ...an adjudication under section 1184(p)(6) EAD Pending Petition has been unlawfully withheld.20 See Nat. Res. Def. Council, Inc. v. Fox, 93 F. Supp. 2d 531, 543 (S.D.N.Y. 2000) (finding "the components of § 706(1) — 'unreasonably delayed' and 'unlawfully withheld' — are mutually exclusive." (......
  • Raymond Proffitt Found v. U.S. Army Corps of Eng., No. CIV. A. 99-4038.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 22, 2000
    ...agency action and remanding to the agency for additional investigation and explanation. See generally 5 U.S.C. § 706; NRDC v. Fox, 93 F.Supp.2d 531, 536 Section 706(1) of the APA gives the court power to review agency inaction and, if unlawful, to compel action. See 5 U.S.C. § 706(1). Secti......
  • Sierra Club v. U.S. E.P.A., No. CIV.A. WMN-97-3838.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 10, 2001
    ...394 (1976). Plaintiffs bear the burden of overcoming this presumption of validity. See Natural Resources Defense Council, Inc. v. Fox, 93 F.Supp.2d 531, 538 (S.D.N.Y. 2000) (citing Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981)). The reviewing court cannot simp......
  • Request a trial to view additional results
2 books & journal articles
  • Water quality standards
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...107 (10th Cir. 2001); San Francisco Baykeeper v. Whitman , 297 F.3d at 877; Natural Resources Defense Council Inc. v. Fox (NRDC III) , 93 F. Supp. 2d 531, 30 ELR 20493 (S.D.N.Y. 2000). his has eroded the potential to force EPA to create TMDLs through the “constructive submission theory” bec......
  • Table of authorities
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...295 Natural Resources Defense Council Inc. v. Fox (NRDC III), 93 F. Supp. 2d 531, 30 ELR 20493 (S.D.N.Y. 2000) ..........................................................................296 Natural Resources Defense Council Inc. v. Outboard Marine Corp., 692 F. Supp. 801, 19 ELR 20279 (N.D. ......

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