Nw. Envtl. Advocates v. U.S. Envtl. Prot. Agency
| Decision Date | 19 July 2021 |
| Docket Number | Case No. 1:13-cv-00263-DCN |
| Parties | NORTHWEST ENVIRONMENTAL ADVOCATES, an Oregon Non-Profit Corporation; Idaho Conservation League, an Idaho Non-Profit Corporation, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant. |
| Court | U.S. District Court — District of Idaho |
Allison Michelle LaPlante, Pro Hac Vice, Earthrise Law Center, Lewis & Clark Law School, Portland, OR, Kevin M. Cassidy, Pro Hac Vice, Earthrise Law Center, Norwell, MA, Lauren M. Rule, Advocates for the West, Boise, ID, for Plaintiffs.
Christine Gealy England, United States Attorney's office, Boise, ID, Gustavus Maxwell, Washington, DC, John H. Martin, Michele L. Walter, U.S. Department of Justice, Denver, CO, for Defendant.
Pending before the Court are the parties' cross-motions for partial summary judgment. Plaintiffs Northwest Environmental Advocates and Idaho Conservation League filed the first motion (Dkts. 85–86), and the United States Environmental Protection Agency ("the EPA") filed the other (Dkt. 87). Both sides assert that there are no disputes of material fact and that they are each entitled to judgment as a matter of law on Claim Six. On June 16, 2021, the Court held a hearing on the motions and took them under advisement. For the reasons set forth below, the Court GRANTS Plaintiffs' motion and DENIES the EPA's motion.
In 2013, Plaintiffs brought this lawsuit against the EPA, the United States Fish and Wildlife Service, and the National Marine Fisheries Service. Dkt. 1. Plaintiffs' Complaint alleged that the three federal agencies failed to take actions required under the Clean Water Act ("the CWA") and the Endangered Species Act pertaining to several water quality standards in Idaho. See generally id. In 2015, Plaintiffs reached a settlement agreement with the Fish and Wildlife Service and the National Marine Fisheries Service regarding the claims against those agencies. Accordingly, those agencies were dismissed from this case. Dkt. 37. That same year, the EPA moved to dismiss many of Plaintiffs' claims against it, which the parties fully briefed. See Dkts. 38–39, 43. In 2019, Judge Lodge issued an order granting in part and denying in part the EPA's Motion to Dismiss. Dkt. 56. This case was reassigned to the undersigned in late 2019. Dkt. 65.
Since that time, the parties have been focused on attempting to settle the remaining claims in the case. The parties represent that they have made significant progress toward reaching a final settlement of all the remaining claims in this case, with the exception of Claim Six—a claim pertaining to mercury water quality standards in Idaho. See Dkt. 83.
Plaintiffs brought Claim Six under the citizen-suit provision of the CWA, specifically Section 505(a)(2). See 33 U.S.C. § 1365(a)(2). They allege that the EPA has violated its duties under Section 303(c) of the CWA to promptly publish and promulgate mercury water quality standards after disapproving Idaho's revision of those standards. See id. § 1313(c).
To understand Plaintiffs' claim, a full reading of Section 303(c) is helpful. To summarize it, Section 303(c) of the CWA implements procedures for reviewing and revising water quality standards throughout the States. Id. It first requires each State to engage in a review of those standards every three years—what is known as triennial review—and to make the results available to the EPA. Id. § 1313(c)(1). Also, "[w]henever the State revises or adopts a new standard, such revised or new standard shall be submitted to the [EPA]." Id. § 1313(c)(2)(A). The EPA then must review the standard, either approving it within 60 days or disapproving it within 90 days. Id. § 1313(c)(3).
In the case of disapproval, the EPA must notify the State of the standard's aspects that are not consistent with the CWA and "specify the changes to meet such requirements." Id. "If such changes are not adopted by the State within ninety days after the date of notification, the [EPA] shall promulgate such standard pursuant to paragraph (4) of this subsection." Id. (emphasis added).
Paragraph (4) lays out the requirements for the EPA to promptly publish and promulgate a CWA-compliant water quality standard, unless the State exercises its last chance to adopt "a revised or new water quality standard which the [EPA] determines to be in accordance" with the CWA. Id. § 1313(c)(4). With the Court's emphasis, paragraph (4) states in full:
Id. ; see also Idaho Conservation League, Inc. v. Russell , 946 F.2d 717, 718 (9th Cir. 1991) ().
In the case at hand, the material facts related to Idaho's Section 303(c) revision of its mercury water quality standard are not in dispute. On June 25, 1996, the EPA approved Idaho's numeric freshwater aquatic life mercury criteria under Section 303(c) and determined that those criteria were in accordance with the CWA. Those criteria were 0.012 µg/L chronic and 2.1 µg/L acute.1 Water quality criteria can be either numeric (e.g. , 0.012 µg/L) or narrative (e.g. , "Surface waters of the state shall be free from toxic substances in concentrations that impair designated beneficial uses"). Dkt. 87-1, at 3–4.
On August 4, 2004, the Idaho Department of Environmental Quality ("IDEQ") published a proposed rule for public comment to update some of the numeric criteria for toxic pollutants, including mercury. IDEQ proposed to remove the acute and chronic numeric freshwater aquatic life criteria for mercury and add a footnote "g" to the toxic criteria table to indicate that the narrative criteria for toxics would apply instead of the numeric criteria. After receiving comments on the proposed standards, including comments from the EPA, IDEQ submitted the proposal to the Idaho Board of Environmental Quality on November 18, 2004, which adopted the standards and submitted them to the Idaho Legislature in January 2005. The Idaho Legislature adopted the standards as final and made them effective on April 6, 2005. On August 8, 2005, IDEQ submitted the standards to the EPA for review and approval pursuant to its Section 303(c) requirement. Id. at 4.
On December 12, 2008, the EPA disapproved Idaho's deletion of the acute and chronic mercury criteria for aquatic life by way of a disapproval letter. Overall, the EPA concluded that "the removal of the acute and chronic numeric freshwater aquatic life criteria for mercury and replacement with footnote ‘g’ is inconsistent with [the CWA] Section 303(c) and 40 C.F.R. [§] 131.11." Id. Specifically, the EPA explained that IDEQ's implementation guidance for the mercury criteria did "not contain definitive information on how the State would translate the fish tissue criterion developed to protect human health to a value which can be used to protect aquatic life." Dkt. 86, at 16. The EPA identified specific changes that would be needed for any future effort to adopt a new or revised mercury aquatic life standard to ensure compliance with the CWA. The EPA recommended four remedies to address the EPA's disapproval, stating:
Id. The EPA also suggested that "[u]ntil Idaho develops and adopts and EPA approves revisions to numeric acute and chronic aquatic life criteria for mercury," the criteria in effect would be the previously adopted acute (2.1 µg/l) and chronic (0.012 µg/l) criteria that the EPA approved in 1996. Id. at 10–11.
Neither the EPA nor Idaho has proposed or published revised aquatic life mercury criteria since the EPA's December 2008 disapproval letter. Now, Plaintiffs and the EPA each seek summary judgment on Claim Six, which is that the EPA violated its Section 303(c) duties to promptly publish and promulgate mercury water quality standards for Idaho. Dkts. 85, 87. Having heard oral argument and reviewed the parties' briefs on the issues involved, the matter is now ripe for the Court to issue its ruling.
Summary judgment is proper "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). The Court's role at...
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