Sierra Club v. U.S. E.P.A.

Citation162 F.Supp.2d 406
Decision Date10 September 2001
Docket NumberNo. CIV.A. WMN-97-3838.,CIV.A. WMN-97-3838.
PartiesSIERRA CLUB, et al. v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.
CourtU.S. District Court — District of Maryland

Simon K. Walton, Schultheis & Walton, P.A., Baltimore, MD, James Robert May, Widener University School of Law, Wilmington, DE, James M. Stuhltrager, Widener University School of Law, Wilmington, DE, for Sierra Club.

William J. White, Earth Justice Legal Defense Foundation, Washington, DC, for Chesapeake Bay Foundation.

Howard I. Fox, Washington, DC, Simon K. Walton, Schultheis & Walton, P.A., Baltimore, MD, James Robert May, Widener University School of Law, Wilmington, DE, James M. Stuhltrager, Widener University School of Law, Wilmington, DE, for American Littoral Society.

James H. Curtin, Office of General Counsel, U.S. Environment Protection Agency, Washington, DC, John A. Sheehan, U.S. Department of Justice, Washington, DC, P. Michael Cunningham, Office of U.S. Attorney, Baltimore, MD, Lois J. Schiffer, U.S. Department of Justice, Washington, DC, Lynne A. Battaglia, U.S. Attorney's Office, Baltimore, MD, Cynthia A. Drew, U.S. Department of Justice, Washington, DC, for United States Environmental Protection Agency, Carol Browner and W. Michael McCabe.

J. Joseph Curran, Jr., Office of the Attorney General, Baltimore, MD, Jennifer L. Wazenski, Baltimore, MD, Denise Ferguson-Southard, Baltimore, MD, for State of Maryland.

Ronald M. Cherry, McGuire Woods LLP, Baltimore, MD, Frank Paul Calamita, III, McGuire Woods Battle & Boothe, LLP, Richmond, VA, for Maryland Association of Municipal Wastewater Agencies, Inc.

Marc K. Cohen, George Whitthorne Kelly, Ober Kaler Grimes and Shriver, Baltimore, MD, for Maryland Chamber of Commerce.

Cynthia A. Drew, U.S. Department of Justice, Washington, DC, for Bradley Campbell.

MEMORANDUM

NICKERSON, District Judge.

Before the Court are Plaintiffs' Motion for Summary Judgment (Paper No. 98); Intervenor Maryland Association of Municipal Wastewater Agencies, Inc.'s Motion for Partial Summary Judgment (Paper No. 110); and Defendant Environmental Protection Agency's Cross-Motion for Summary Judgment (Paper No. 112). All motions have been exhaustively briefed and are ripe for decision. Upon a review of the motions and the applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6) and that: Maryland Association of Municipal Wastewater Agencies, Inc.'s motion for partial summary judgment will be granted; Plaintiffs' motion for summary judgment will be granted as to Counts I, V, and VI of the 1998 complaint and denied as to all other counts; and, Defendant Environmental Protection Agency's cross-motion for summary judgment will be granted as to Counts I, II, III, and V of the 1997 complaint and denied as to all other counts.1

I. BACKGROUND

In 1972, Congress enacted the Federal Water Pollution Control Act ("Clean Water Act" or "Act"), 33 U.S.C. § 1251, et seq., to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. at § 1251(a). Pursuant to the Act, state's are required to take certain actions, such as the establishment of water quality standards, the identification of waters that do not meet those standards, establish proper pollutant load limits to insure that polluted waters achieve the water quality standards, and the adoption of a continuing planning process that is consistent with the Act. See generally 33 U.S.C. § 1313. All of these actions are subject to EPA review and approval. See id. In addition, pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., before undertaking any action that may affect an endangered species, threatened endangered species, or critical habitat, all federal agencies must "insure that any action authorized, funded, or carried out by such agency" is not likely to jeopardize such species or habitat. 16 U.S.C. § 1536(a)(2).

Plaintiffs Sierra Club, Chesapeake Bay Foundation, and American Littoral Society, brought this suit2 against the United States Environmental Protection Agency ("EPA"), Carol Browner, the Administrator of the EPA, and Bradley Campbell, EPA's Region III Administrator (hereinafter "Regional Administrator"), alleging that the EPA failed to fulfill certain duties under the Clean Water Act and the ESA, and that certain other duties that were performed in a manner that was arbitrary, capricious and in abuse of discretion. The Court granted the Maryland Association of Municipal Wastewater Agencies, Inc.'s ("MAMWA") and the Maryland Chamber of Commerce's motions to intervene as party defendants. In addition, the Maryland Department of the Environment has appeared as amicus curiae.

On August 6, 1999, intervenor MAMWA filed, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), a motion to dismiss Counts IV and V of the 1997 complaint and Count III of the 1998 complaint. In a memorandum and order dated September 13, 2000, MAMWA's motion was granted in part and denied in part in that Count IV of the 1997 complaint and Count III of the 1998 complaint were dismissed; and, Plaintiffs were given 20 days to file an amended complaint as to Count V of their 1997 complaint. Pursuant to that Order, Plaintiff sought, and obtained, leave of Court to file an amended complaint. Under the amended 1997 complaint and the 1998 complaint, the remaining claims are: Counts I and II of the 1997 complaint (challenge to EPA decisions approving Maryland's 1996 and 1998 section 303(d) lists); Count V of the 1997 complaint (challenge to EPA decision not to step in and establish TMDLs for Maryland); Count III of the 1997 complaint (EPA's alleged violation of the Administrative Procedure Act's notice and comment requirement); Counts I, II, and IV of the 1998 complaint (EPA's alleged violation of the Clean Water Act and the Administrative Procedure Act with respect to Maryland's continuing planning process); and, Counts V and VI of the 1998 complaint (alleged ESA violations). Subsequently, motions for summary judgment were filed by both parties. A motion for partial summary judgment, as to Count V of the 1997 complaint, was also filed by MAMWA.

II. STANDARDS OF REVIEW
A. Summary Judgment

Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For purposes of summary judgment, a dispute about a fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and a fact is material if, when applied to the substantive law, it affects the outcome of litigation. Id.

A party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying the portions of the opposing party's case which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party "is entitled to have all reasonable inferences ... drawn in [its] favor." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1129 (4th Cir.1987).

If the movant demonstrates that there is no genuine issue of material fact and that he is entitled to summary judgment as a matter of law, the non-moving party must, in order to withstand the motion for summary judgment, produce sufficient evidence in the form of depositions, affidavits or other documentation which demonstrates that a triable issue of fact exists, Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Unsupported speculation is insufficient to defeat a motion for summary judgment. Felty, 818 F.2d at 1128 (citing Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986)). Additionally, the existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Instead, the evidentiary materials must show facts from which the finder of fact could reasonably find for the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

B. Administrative Procedure Act

When a challenge is made to the substance of an agency action, judicial review under the Administrative Procedure Act ("APA"), see 5 U.S.C. § 561, et seq., is appropriate. See Scott v. City of Hammond, Ind., 741 F.2d 992, 995 (7th Cir. 1984) (citing United States Steel Corp. v. Train, 556 F.2d 822, 836-37 (7th Cir. 1977)). In performing such a review "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The APA also authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).

The APA's standard of review is highly deferential and presumes the agency action to be valid. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 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 simply substitute its judgment for that of the agency. Id. Instead, the court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Natural Resources Defense Council, 93 F.Supp.2d at 537 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).

An agency decision is deemed to be "arbitrary, capricious, an abuse of discretion" if "the agency has relied on factors...

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