Ctr. for Biological Diversity v. Regan

691 F.Supp.3d 1

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Michael S. REGAN, et al.,¹ Defendants.

Civil Action No. 21-119 (RDM)

United States District Court, District of Columbia

Signed August 23, 2023

Tania Galloni, Pro Hac Vice, Christina Reichert, Pro Hac Vice, Earthjustice, Miami, FL, Bonnie Malloy, Pro Hac Vice, Earthjustice, Tallahassee, FL, Anna Marie Sewell, Earthjustice, Washington, DC, for Plaintiffs Center for Biological Diversity, Defenders of Wildlife, Sierra Club, Conservancy of Southwest Florida, Miami Waterkeeper, St. Johns Riverkeeper, Florida Wildlife Federation.

Gary V. Perko, Mohammad Omar Jazil, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Tallahassee, FL, Edward M. Wenger, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Washington, DC, for Plaintiffs Association of Florida Community Developers, Incorporated (AFCD), Florida Chamber of Commerce.

Andrew S. Coghlan, DOJ-ENRD, Washington, DC, Alison C. Finnegan, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

This matter is before the Court on Plaintiffs' renewed partial motion for summary judgment, Dkt. 78, Defendants' renewed partial cross-motion for summary judgment, Dkt. 82, and Intervenors' renewed partial cross-motion to dismiss, Dkt. 83; Dkt. 84.² These motions pose a single question: Whether Plaintiffs' claim that the Environmental Protection Agency ("EPA") violated the Administrative Procedure Act ("APA") by making its approval of Florida's Section 404 program effective immediately upon publication in the Federal Register—rather than no less than 30 days after publication—is redressable. For the following reasons, the Court concludes that it is not. The Court, accordingly, will DENY Plaintiffs' renewed motion for partial summary judgment, Dkt. 78, will GRANT the EPA's renewed cross-motion for partial summary judgment, Dkt. 82, and will GRANT the State of Florida and Florida Department of Environmental Protection's renewed motion to dismiss, Dkt. 83.

I. BACKGROUND

This Court has previously described the statutory and factual background of this case in detail, see Center for Biological Diversity v. Regan, 597 F. Supp. 3d 173, 180-85 (D.D.C. 2022) (hereinafter "CBD I"), and, for present purposes, recounts only the context necessary for the disposition of the pending motions. At the core of this case is Section 404 of the Clean Water Act, which governs the issuance of permits for "the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). Although the Army Corps of Engineers ("Corps") is usually responsible for the issuance of these permits, a state may submit an application to the EPA, seeking authority to "administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters . . . within its jurisdiction." Id. § 1344(g)(1); see also 40 C.F.R. § 233.1(a); Dkt. 1 at 16 (Compl. ¶ 68) ("The Corps is charged with administering permits under [S]ection 404 of the Clean Water Act . . . .").

On August 18, 2020, the State of Florida applied to administer the Section 404 permitting program within its borders. Dkt. 55 at 433. The EPA deemed the State's application complete on August 20, 2020, Dkt. 56-1 at 684, triggering a statutory 120-day period for the agency to review the application, see 33 U.S.C. § 1344(h)(1); 40 C.F.R. § 233.15(a). On September 16, 2020, the EPA issued a public "[n]otice and request for comments" on Florida's Section 404 permitting program application and announced that the EPA would hold two "virtual hearings" on the application in October 2020. Dkt. 51 at 1. The EPA "recommend[ed] that commenters also submit the text of their oral comments . . . as written comments to the rulemaking docket." Id. at 2. The EPA explained that "verbatim transcripts of the sessions w[ould] be included in the rulemaking docket." Id. If the EPA ultimately "approve[d] this program," the agency added, it planned to "codify the approved program in 40 CFR 233 subpart H," id. at 3, where the EPA had codified the only two state Section 404 permitting programs that the agency had approved, see 49 Fed. Reg. 38,947 (Oct. 2, 1984) (Michigan) (codified at 40 C.F.R. § 233.70); 59 Fed. Reg. 9,933 (Mar. 2, 1994) (New Jersey) (codified at 40 C.F.R. § 233.71). The EPA received over 3,000 comments in response to its notice, Dkt. 56-1 at 433, including comments from the Plaintiffs in this case, who argued, among other things, that Florida's application was incomplete, Dkt. 55-3 at 69; Dkt. 56 at 17, and that Florida was "not equipped to administer and enforce Section 404," Dkt. 56 at 17.

On December 17, 2020, the EPA Administrator, Andrew Wheeler, announced approval of Florida's program, and the agency published a notice of approval in the Federal Register on December 22, 2020. Dkt. 56-1 at 433-34; see also 85 Fed. Reg. 83,553 (Dec. 22, 2020). That notice, which was signed by the Regional Administrator, asserted that the EPA had "determined that the State of Florida ha[d] the necessary authority to operate a CWA Section 404 program in accordance with the requirements found in CWA section 404(g-1) and [the] EPA's implementing regulations." Dkt. 56-1 at 433. The notice further asserted that the "EPA has taken final action to approve Florida's assumption of the program" and that "Florida's program assumption [was] applicable December 22, 2020," id., which was the day the notice was published in the Federal Register, see 85 Fed. Reg. 83,553 (Dec. 22, 2020).

That same day, Earthjustice (which serves as counsel for Plaintiffs in this matter) sent a letter to the EPA asserting that the "EPA's transfer of authority was unlawful." Dkt. 31-1 at 6 (Crooks Decl. ¶ 19); see also id. at 100-01 (Crooks Decl., Ex. D) (letter). Among other things, the letter argued that, under the APA, "[t]he required publication or service of a substantive rule shall be made not less than 30 days before its effective date." Id. at 100 (Crooks Decl., Ex. D) (quoting 5 U.S.C. § 553(d)). Because, according to the letter, the EPA's approval of Florida's Section 404 program constituted a "substantive rule" for purposes of 5 U.S.C. § 553(d) and because none of the relevant exceptions applied, the EPA lacked authority to make its approval immediately effective. Id. The letter further noted that the EPA had failed to "codify [Florida's] program in the Code of Federal Regulations," as was required by the Federal Register Act. Id. at 101 (Crooks Decl., Ex. D). The letter concluded: "The state program therefore does not have the force of law, and the authority to administer Section 404 of the Clean Water Act in Florida remains with the U.S. Army Corps of Engineers." Id.

The EPA did not respond to Earthjustice but, instead, sent a letter to the Florida Department of Environmental Protection ("FDEP") on December 28, 2020, asserting—"for the first time," according to Plaintiffs—that the EPA's approval of Florida's application "did not have to meet the 30-day requirement [and that the EPA did not have to] codify the state program because [the agency's approval] was an informal adjudicatory order, rather than a rule." Id. at 6 (Crooks Decl. ¶ 19); see also id. at 103-04 (Crooks Decl., Ex. E). In that letter, the EPA's acting general counsel, David Fotouhi, acknowledged the "letter from Earthjustice questioning the effective date of Florida's 404 assumption." Id. at 103 (Crooks Decl., Ex. E). But Fotouhi maintained that the EPA's immediate effective transfer of Section 404 authority to the State of Florida complied with the Clean Water Act and its implementing regulations as well as the relevant provisions of the APA. Id. at 103-04 (Crooks Decl., Ex. E). As for Earthjustice's invocation of the APA's 30-day-notice requirement, 5 U.S.C. § 553(d), Fotouhi observed that "[a]gencies may use adjudications to apply general rules to address specialized or fact-specific questions," and he argued that the "EPA's approval of Florida's Section 404 program was an adjudication, not a rulemaking," meaning that "the APA's requirement that the effective date of a rule generally be delayed for 30 days d[id] not apply." Id. at 104 (Crooks Decl., Ex. E) (internal citation omitted).

On January 14, 2021, the EPA published a "Pre-Publication Notice" indicating that the agency intended to "update[e] the Code of Federal Regulations" to "reflect its approval" of Florida's Section 404 program. Pre-Publication Notice, EPA, Codifying EPA's Adjudicatory Decision on Florida's Clean Water Act Section 404 Program Request, at 1 (Jan. 14, 2021), https://www.epa.gov/sites/default/files/2021-01/documents/pre-publication_frn-_fl_404_codification_final_rule_.pdf ("Pre-Publication Notice"). That notice mirrored the Fotouhi letter and repeated his assertion that the "EPA's approval of Florida's program was not an Agency rule" subject to the 30-day-notice requirement. Id. at 4. Although the notice did acknowledge that the codification of that decision—as opposed to the decision itself—might itself constitute a rule, the EPA nonetheless concluded that (1) the codification process did not require an opportunity for notice and comment, because the EPA had "already determined that Florida ha[d] met the requirements for" assuming the CWA permitting authority, and (2) good cause existed for making "this final rule"—that is the codification of what the EPA characterized as a prior adjudication—"effective immediately." Id. at 5 (emphases added). According to the notice, "[b]ecause this rule merely codifies an adjudication that is already effective, the rationale for delayed effectiveness . . . does not apply." Id.

Plaintiffs, seven environmental organizations,³ filed this suit on January 14, 2021, alleging that "[t]he EPA's actions failed to effectuate a lawful transfer of authority." Dkt. 1 at 3,...