Pine Creek Valley Watershed Assoc. v. U.S. Envtl. Prot. Agency

Decision Date17 March 2015
Docket NumberCivil Action No. 14–1478.
Citation97 F.Supp.3d 590
PartiesThe PINE CREEK VALLEY WATERSHED ASSOC., Raymond Proffitt Foundation, The Delaware Riverkeeper Network, and The Delaware Riverkeeper c/o John Wilmer, Esq., Plaintiffs, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Gina McCarthy, Administrator, and Shawn Gavin, Region III Administrator, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Nicholas B. Patton, Delaware Riverkeeper Network, Bristol, PA, John W. Wilmer, Media, PA, for Plaintiffs.

Austin David Saylor, Amanda Shafer Berman, Laura Jane Brown, U.S. Dept of Justice, Washington, DC, for Defendants.


SMITH, District Judge.

On July 2, 2013, Pennsylvania passed Act 41,1 a legislative enactment that amended the Pennsylvania Sewage Facilities Act (“Sewage Facilities Act”), 35 Pa.S. §§ 750.1–750.20a. Act 41 allows the use of certain on-lot sewage systems to satisfy the state's antidegradation requirements if the design and approval of those systems comport with the Sewage Facilities Act. Due to their view that Act 41 works an end-run around antidegradation review, and therefore changes existing water quality standards, the plaintiffs seek to compel the Environmental Protection Agency (EPA) to, at a minimum, review Act 41 for compliance with the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 –1388. But because the citizen-suit provision under the CWA grants district courts subject-matter jurisdiction to order the EPA to perform only non-discretionary acts or duties, the plaintiffs can invoke the power of this court only if the EPA has a mandatory duty to review Act 41 under the CWA. This case, then, turns on whether such a duty can be found within the bounds of the CWA.

Ultimately, this jurisdictionally-dispositive inquiry presents a relatively straightforward Chevron problem that rises and falls on implementing congressional intent. Relevant here, the court focuses on congressional intent as embodied in the statutory provision detailing the EPA's duty to review revised or new water quality standards. For if the text of the CWA is clear that Act 41 constitutes a revised or new water quality standard, the court has jurisdiction to order the EPA to act. If the converse is clear, jurisdiction is lacking. If, however, the statutory provision is ambiguous, the characterization of Act 41 must be answered by the EPA, as the administering agency, to the extent that it reasonably brings its authority to bear on that precise issue.

In the end, the statutory text does not clearly address the precise question presented and so the court defers to relevant EPA regulations as permissible constructions of the CWA. Because the regulations unambiguously preclude the conclusion that Act 41 constitutes a water quality standard, they likewise foreclose the result that Act 41 constitutes a revised or new water quality standard capable of triggering the jurisdictionally-required mandatory duty to act. The court, therefore, lacks jurisdiction over the CWA claim and dismisses it without prejudice. The court also dismisses the ancillary claim under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 –706, on the merits.


On March 12, 2014, the plaintiffs, the Pine Creek Valley Watershed Association, the Raymond Proffitt Foundation, the Delaware Riverkeeper Network, and the Delaware Riverkeeper, filed a complaint against the defendants, the United States Environmental Protection Agency, Gina McCarthy as the Administrator of the EPA, and Shawn Gavin as the Regional Administrator of EPA Region III. Compl., Doc. No. 1. In the complaint, the plaintiffs seek an order compelling the EPA to review, and ultimately to reject, Act 41 as a revised or new water quality standard that runs afoul of the CWA. Id. at ¶¶ 2, 57, 60. The plaintiffs further seek an order compelling the EPA to “promptly prepare and publish regulations denying Pennsylvania's disputed revised water quality standards.” Id. at ¶ 62. To pursue these remedies, the plaintiffs invoke two rights of action: the citizen-suit provision of the CWA, 33 U.S.C. § 1365(a)(2), and the right of action created by the APA, 5 U.S.C. §§ 702, 704. Id. at ¶ 1.

Taking issue with the CWA claim on jurisdictional grounds and the APA claim on merits grounds, the defendants filed a motion to dismiss on July 14, 2014. Mot. to Dismiss, Doc. No. 16. The plaintiffs filed a timely opposition to the motion. Pls.' Resp. to Defs.' Mot. to Dismiss, Doc. No. 19. The defendants filed a reply in support of the motion on August 21, 2014. Reply in Supp. of Mot. to Dismiss Pls.' Compl., Doc. No. 24.

The court held an initial pretrial conference on September 2, 2014. At the conference, the parties confirmed that the facts were not in dispute and that the case presented uniquely legal issues. Order, Doc. No. 28. Accordingly, the court gave the parties an opportunity to create a record through stipulated facts. Id. Further, the court allowed the parties to supplement their respective positions concerning the motion to dismiss and invited them to file cross-motions for summary judgment. Id. The parties eventually filed supplementary briefing with respect to the motion to dismiss, cross-motions for summary judgment, and respective responses to the cross-motions. See Doc. Nos. 32–34, 36, 38, 39–41.

A slight procedural twist developed relatively early on in the litigation. About the time that the defendants filed the motion to dismiss, the National Association of Homebuilders filed a motion to intervene pursuant to Federal Rule of Civil Procedure 24. The Nat'l Ass'n of Homebuilders' Mot. to Intervene Pursuant to Fed.R.Civ.P. 24, Doc. No. 17. Approximately one month later, the Pennsylvania Builders Association filed a motion to intervene that expressed a desire to unite with the position taken by the National Association of Homebuilders, including adopting the arguments contained in its prior motion to intervene.2 The Pennsylvania Builders Ass'n's Mot. to Intervene Pursuant to Fed.R.Civ.P. 24, Doc. No. 23. The plaintiffs filed oppositions to both motions to intervene. See Doc. Nos. 20, 25. The court granted both motions after the initial pretrial conference. Order, Doc. No. 28. In turn, the Intervenors filed an answer to the complaint, a motion for summary judgment, and a response in opposition to the plaintiffs' motion for summary judgment. See Doc. Nos. 31, 35, 37.

With all relevant submissions filed by the original parties and intervenors alike, the court held oral argument on November 12, 2014. The outstanding motions are thus ripe for disposition.

A. Standard of Review

Given the posture of the case, three standards of review are theoretically applicable: (1) the standard of review under Federal Rule of Civil Procedure 12(b)(1) ; (2) the standard of review under Federal Rule of Civil Procedure 12(b)(6) ; and (3) the standard of review under Federal Rule of Civil Procedure 56. The court recites the standards only under Rule 12, however, because they are outcome-determinative.

“A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000) (citation omitted). “In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Id. at 176 (citations and footnote omitted). In other words, the court accepts “all well-pleaded allegations in the complaint as true and view[s] them in the light most favorable to the plaintiff.” In re Kaiser Grp. Int'l Inc., 399 F.3d 558, 561 (3d Cir.2005) (citation omitted). In reviewing a factual attack, on the other hand, “a court may weigh and consider evidence outside the pleadings.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir.2014) (internal quotation marks and citation omitted). Here, the court construes the instant challenge as a facial one, noting that the parties have agreed that this matter presents solely questions of law.

A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of the allegations contained in the complaint” and places the burden on the defendant to show that no claim has been presented. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993) (citation omitted); see Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005) (citation omitted). In reviewing such a motion, the court accepts all well-pleaded facts in the complaint as true and construes them in a “light most favorable to the plaintiff[s].” Santomenno v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d 284, 290 (3d Cir.2014) (internal quotation marks and citation omitted). Viewing the facts in this manner, the court must ultimately determine whether the complaint “contain[s] sufficient factual matter ... to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

With respect to the CWA claim, the court is mindful that there is significant, if not identical, overlap between the jurisdictional inquiry and any merits inquiry. See, e.g., Miccosukee Tribe of Indians of Fl. v. United States, EPA, 105 F.3d 599, 603 (11th Cir.1997) (noting that “the jurisdictional question is intertwined with the merits” in a similar CWA suit). In principle, this overlap is important because the Third Circuit has stated that Rule 12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the truth of the plaintiff's allegations.” CNA v. United States, 535 F.3d 132, 144 (3d Cir.2008). Thus, one may read Third Circuit language to...

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