Nw. Envtl. Advocates v. United States Envtl. Prot. Agency

• Decision Date: 04 April 2022
• Docket Number: 3:21-cv-01136-HZ
• Parties: NORTHWEST ENVIRONMENTAL ADVOCATES, a nonprofit organization, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MICHAEL REGAN, in his official capacity as Administrator of the Environmental Protection Agency, and MICHELLE PIRZADEH, in her official capacity as Acting Regional Administrator Environmental Protection Agency Region 10, Defendants.
• Court: U.S. District Court — District of Oregon

NORTHWEST ENVIRONMENTAL ADVOCATES, a nonprofit organization, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MICHAEL REGAN, in his official capacity as Administrator of the Environmental Protection Agency, and MICHELLE PIRZADEH, in her official capacity as Acting Regional Administrator Environmental Protection Agency Region 10, Defendants.

No. 3:21-cv-01136-HZ

United States District Court, D. Oregon

April 4, 2022

James Neville Saul Lewis & Clark Law School 10101 S Terwilliger Blvd. Portland, OR 97219 Attorney for Plaintiff

Gus Maxwell Brian S. Uholik United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, DC 20044 Attorneys for Defendant

OPINION & ORDER

MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

Plaintiff Northwest Environmental Advocates (“NWEA”), a nonprofit environmental organization, brings four claims challenging Defendants United States Environmental Protection Agency (“EPA”), EPA Administrator Michael Regan and Acting EPA Regional Administrator Michelle Pirzadeh's oversight of Oregon's implementation of Section 303(d) of the Clean Water Act (CWA). In simple terms, Section 303(d) concerns the clean up of polluted surface waters. Defendants move to dismiss Plaintiff's Claims Two, Three, and Four for failure to state a claim. For the reasons that follow the Court denies Defendants' Motion to Dismiss.

BACKGROUND

I.The Clean Water Act Statutory Framework

In Columbia Riverkeeper v. Wheeler, the Ninth Circuit summarized the statutory background relevant to this case. 944 F.3d 1204, 1205 (9th Cir. 2019). The Court repeats it here.

Congress enacted 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). To reduce the discharge of pollutants into navigable waters, the CWA first regulates point-source pollution directly with technology-based permitting requirements. Id. §§ 1311(a), 1362(12). When these controls fail to adequately improve polluted waters, the CWA uses a holistic water-quality based approach. See Id. § 1313. Under § 1313, states must identify qualifying “water quality limited segments” (“impaired waters”) within their borders and rank them in order of priority. A water may be impaired because of a high level of a specific pollutant such as nitrogen, or a condition such as temperature or turbidity. These rankings are referred to as “§ 303(d) lists.” Once a state has submitted a § 303(d) list, it must then submit a [total daily maximum load] TMDL to the EPA for approval for each pollutant in each impaired water segment. This TMDL sets the maximum amount of a pollutant that each segment can receive without exceeding the applicable water quality standard. Id. §§ 1313(d)(1)(A), (C).

States are required to send the EPA their initial priority ranking of impaired waters and completed TMDLs within 180 days of the agency's identification of covered pollutants. Id. § 1313(d)(2). The EPA published its list of covered pollutants in December of 1978, so the original priority rankings and TMDLs were due in June of 1979. The CWA requires states to update their priority rankings and submit remaining TMDLs “from time to time.” Id. The EPA “shall either approve or disapprove” a TMDL within thirty days of its submission. Id. If approved, the TMDL goes into effect. Id. If the EPA disapproves, the agency “shall” produce and issue its own TMDL within thirty days. Id. These duties under the CWA are not discretionary. To this end, the CWA authorizes citizen suits in federal court against the EPA if it fails to perform any nondiscretionary duty imposed under the statute. Id. § 1365(a).

Id. at 1205-06.

II.Oregon's TMDL Schedule

On April 21, 2020, Oregon submitted its 303(d) list to EPA for approval. Defs.' Mot. to Dismiss Ex. 1 (“List Decision”) at 1, ECF 7-1.^[1] At two points during 2020, Defendants requested additional information, which Oregon provided. Id. On November 20, 2020, EPA approved Oregon's 303(d) list, calling it the “2014-2020” list, though Plaintiff alleges Oregon did not submit data for 2014 and 2016. Id.; Compl. ¶ 5.

The “2014-2020” list “includes approximately 3, 741 [water quality limited segments] WQLS in need of TMDLs.” Compl. ¶ 66. Oregon's “TMDL Priorities and Schedule” document separated its impaired waters into three categories: high priority, medium priority, and low priority. Mot. to Dismiss Ex. 2 at 1, ECF 7-2. According to the document, for high priority listings, Oregon is “currently working on a TMDL” or “anticipates the TMDL to be worked on sometime before the end of 2022.” Id. For medium priority listings Oregon expects to address them with “TMDLs within the next eight years.” Id. It stated further that Oregon will schedule TMDL development for low priority listings at a future date. Id.

Plaintiff alleges Defendants and Oregon have failed to develop TMDLs on a reasonable schedule. Compl. ¶ 6. It alleges that Oregon has “effectively abandoned its TMDL program” and thus constructively submitted to EPA “a host of TMDLs for waters that have been impaired for many years or even decades.” Compl. ¶ 9. Plaintiff filed this action on August 3, 2021. Compl. Defendants then filed this motion to dismiss.

STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).

To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.

DISCUSSION

Plaintiff brings four claims for relief against Defendants. Claim One alleges Defendants violated the CWA by failing to review and approve Oregon's constructively submitted TMDLS for most WQLS in Oregon. Claim Two, brought under the Administrative Procedures Act (“APA”), alleges Oregon's TMDL Priority Ranking and Schedule was arbitrary, capricious, and contrary to law because it: (1) failed “to account for ‘the severity of the pollution and the uses to be made of such waters' as required by 40 C.F.R. § 130.7(b)(4)”; (2) failed “to include any waters targeted for TMDL development in the two years following submittal”; and (3) provided “no schedule that indicates how long it will take to complete TMDLs.” Compl. ¶ 83. Claim Three alleges Defendants violated the CWA by failing to determine Oregon's schedule for the submission of TMDLs as required by Section 303(d) and 40 C.F.R. § 130.7(d)(1). Claim Four is brought under the APA and alleges in the alternative that Defendants' failure to determine Oregon's schedule for the submission of TMDLs was arbitrary, capricious, and an abuse of discretion. Defendants move to dismiss Plaintiff's Claims Two, Three, and Four.

The Court finds Claim Two is justiciable under the APA because EPA's review of Oregon's TMDL priority ranking and schedule is a final agency action. On Claim Three, the Court finds Plaintiff provided adequate notice and alleged that Defendants failed to perform a nondiscretionary duty under the CWA. Because Claim Four is pled in the alternative to Claim Three, the Court declines to address the merits of the parties' arguments at the motion to dismiss stage. Accordingly, the Court denies Defendants' motion to dismiss Claims Two, Three and Four.

I.Claim Two

Plaintiff's Claim Two challenges EPA's review of Oregon's priority ranking and schedule of its 303(d) impaired waters list. Defendants argue this claim should be dismissed because it does not challenge a final agency action justiciable under the Administrative Procedures Act, and that even if it does, it should be dismissed on the merits because EPA's actions were reasonable.

A.Final Agency Action

For an action to be final it must: (1) “mark the consummation of the agency's decisionmaking process [and] must not be of a merely tentative or interlocutory nature”; and (2) “be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997).

Defendants argue that the action challenged by Plaintiff in Claim Two meets neither condition of the Bennett test because the relevant final action in this conext is whether the EPA approves or disapproves the 303(d) list, not EPA's review of Oregon's priority ranking and schedule. It contends that EPA's review of Oregon's priority rankings is an interim step, not a final action.

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