Nw. Environmental Advocates v. U.S. Envtl. Prot. Agency
| Decision Date | 28 February 2012 |
| Docket Number | Case No. 3:05–cv–01876–AC. |
| Citation | 855 F.Supp.2d 1199 |
| Parties | NORTHWEST ENVIRONMENTAL ADVOCATES, a non-profit corporation, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, a United States Government Agency; National Marine Fisheries Service, a part of the National Oceanic and Atmospheric Administration, a part of the United States Department of Commerce; United States Fish and Wildlife Service, a part of the United States Department of the Interior, Defendants, State of Oregon; and Northwest Pulp and Paper Association, Intervenor–Defendants. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
Daniel P. Mensher, Daniel J. Rohlf, Allison Michelle LaPlante, Lewis & Clark Law School, Portland, OR, for Plaintiff.
Kevin William McArdle, Kristen Byrnes Floom, Meredith Lisa Flax, U.S. Department of Justice, Washington, DC, Mark A. Nitczynski, U.S. Department of Justice, Denver, CO, Michael James Zevenbergen, U.S. Department of Justice, Seattle, WA, Stephen J. Odell, United States Attorney's Office, Portland, OR, for Defendants.
Matthew J. Donohue, State of Oregon, Salem, OR, for Intervenor–Defendants.
Plaintiff challenges decisions made by federal agencies related to the State of Oregon's water quality standards. Plaintiff has filed two Motions for Partial Summary Judgment [207 and 212] and defendants have filed Cross–Motions for Partial Summary Judgment [254 and 260]. These motions request summary judgment on all claims in plaintiff's Second Amended Complaint. For the following reasons, plaintiff's Motion for Partial Summary Judgment on the Endangered Species Act claims [207] is granted, plaintiff's Motion for Partial Summary Judgment on the Clean Water Act claims [212] is granted in part and denied in part, defendants' Cross–Motion for Partial Summary Judgment on the Endangered Species Act claims [254] is denied, and defendants' Cross–Motion for Summary Judgment on the Clean Water Act claims [260] is granted in part and denied in part.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2011). When reviewing an agency's final decision, the court's duty on summary judgment is to determine whether the evidence in the administrative record permitted the agency to make that decision as a matter of law. Occidental Eng'g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.1985). This review is governed by the Administrative Procedure Act's arbitrary and capricious standard. 5 U.S.C. § 706(2)(A) (2006); Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1235 (9th Cir.2001) (); Am. Wildlands v. Browner, 260 F.3d 1192, 1196 (10th Cir.2001) ().
The court may set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To determine whether an agency decision is arbitrary and capricious, the court should “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). After considering the relevant factors, the agency must articulate a satisfactory explanation for its action, including a rational connection between the facts found and the agency's conclusions. Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1193 (9th Cir.2008); Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1145 (9th Cir.2007) (citation omitted).
An arbitrary and capricious finding is necessary if the agency “relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir.2010). Review under this standard is narrow, and the court may not substitute its judgment for the judgment of the agency. Id. The court must be “at its most deferential” when reviewing an agency's scientific determinations. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).
Plaintiff is a non-profit environmental organization challenging three federal agencies for decisions related to water quality standards for the State of Oregon. Plaintiff brings suit under the Federal Water Pollution Control Act (commonly known as the Clean Water Act (“CWA”)), 33 U.S.C. § 1251(a)et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Plaintiff specifically challenges the Environmental Protection Agency's (“EPA”) review and approval of Oregon's water quality standards, and the final decisions of the Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively “the Services”) concluding that EPA's approval of the water quality standards was not likely to jeopardize fish listed as threatened or endangered under the ESA. The parties have cross-moved for summary judgment on all thirteen claims in plaintiff's Second Amended Complaint. Defendants have not challenged plaintiff's standing to bring any of these claims.
The purpose of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The CWA requires each state to develop water quality standards for all waterbodies within its jurisdiction. Id. at § 1313(a). These water quality standards designate specific uses for the waters involved, and then establish numeric and narrative water quality criteria in order to protect those uses. Id. at § 1313(c)(2).
Each state must review and appropriately modify its water quality standards at least once every three years and submit those revised standards to the EPA. Id. at § 1313(c)(1). The EPA must then review the water quality standards and approve those standards that meet the requirements of the CWA. Id. at § 1313(c)(3). If the EPA rejects the revised water quality standards, the state has ninety days to further revise its water quality standards. Id. If the state fails to act within ninety days, the EPA shall “promptly prepare and publish” proposed water quality standards for the state. Id. at § 1313(c)(4).
Each state is also required to identify all of the waters within its borders that do not meet water quality standards and establish total maximum daily loads (“TMDLs”) for those waters. Id. at § 1313(d). A TMDL defines the specified maximum amount of a pollutant which can be discharged into the waters from all combined sources without violating water quality standards. Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir.1995). The states must submit their § 1313(d) lists to the EPA for its approval or disapproval. 33 U.S.C. § 1313(d)(2). If the EPA disapproves either the § 1313(d) list or any TMDLs, the EPA must put together the disapproved documents itself, and the state must incorporate those documents into its planning process. Id.
The purposes of the ESA are to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” and “to provide a program for the conservation” of such species. 16 U.S.C. § 1531(b). The FWS is required to maintain lists of endangered and threatened species. Id. at § 1533(c)(1).
Section 7(a)(2) of the ESA requires federal agencies to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification” of such species' critical habitat. Id. at § 1536(a)(2). Whenever a federal agency, such as the EPA, determines that a proposed action “may affect listed species or critical habitat,” that agency must prepare a biological assessment on the effects of the action and consult with the Services to determine whether the agency action is likely to result in jeopardy to that species or its critical habitat. 50 C.F.R. § 402.14(a); 16 U.S.C. § 1536(a). Once consultation is initiated, the Services are responsible for reviewing all relevant information and formulating a biological opinion (“BiOp”) as to whether the action is likely to result in jeopardy to a listed species. 50 C.F.R. § 402.14(g).
In making this determination, the EPA must provide the Services with a biological assessment, and the Services “shall use the best scientific and commercial data available.” 50 C.F.R. § 402.14(a); 16 U.S.C. § 1536(a). If the Services determine that an agency's action is likely to jeopardize the continued existence of a listed species, the Services must suggest reasonable and prudent alternatives to the proposed action, if any exist, that would not result in such jeopardy. 16 U.S.C. § 1536(b)(3).
If the Services conclude that a proposed action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat, but determines that the action will nevertheless result in the take of listed species, the Services must issue an incidental take statement (“ITS”). Id. at § 1536(b)(4). An ITS authorizes the limited take of listed species that would otherwise violate § 9's “take” prohibition, establishes the limit of any taking of the species, and specifies measures to minimize take. Id.; 50 C.F.R. § 402.14(i). If during the course of the subject action, the amount or...
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