Gulf Restoration Network v. McCarthy

783 F.3d 227

GULF RESTORATION NETWORK ; Missouri Coalition For The Environment ; Iowa Environmental Council ; Tennessee Clean Water Network ; Minnesota Center for Environmental Advocacy ; Sierra Club; Prairie Rivers Network ; Kentucky Waterways Alliance ; Environmental Law & Policy Center; Natural Resources Defense Council, Incorporated; Waterkeeper Alliance, Incorporated, Plaintiffs–Appellees

v.Gina McCARTHY, Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency, Defendants–Appellants.

No. 13–31214.

United States Court of Appeals, Fifth Circuit.

April 7, 2015.

Ann Alexander (argued), Natural Resources Defense Council, Bradley David Klein, Environmental Law & Policy Center, Chicago, IL, Machelle Rae Lee Hall, Esq., Adam Babich, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiffs–Appellees.

Matthew Littleton, Trial Attorney (argued), John Emad Arbab, Angeline Purdy, Environment & Natural Resources Division–Appellate, Washington, DC, for Defendants–Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

Opinion

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The Clean Water Act establishes a statutory scheme to protect and improve the quality of the country's waters. The administration of the Act depends on complicated interactions of three actors: the states, with lead responsibility for protecting waters within their borders; the EPA, which steps in when the state-led efforts are inadequate; and the federal courts, which enforce Congressional mandates against state and federal regulators.

Not every state or EPA action taken under the Act is judicially cognizable; some are committed to agency discretion and are unreviewable. Under the statute, the EPA Administrator is obligated to issue new water quality standards in any case where she “determines that a revised or new standard is necessary to meet the requirements of” the Act. Here, the Administrator denied a petition for rulemaking, declining to make a so-called “necessity determination.” The petitioners challenged this decision in federal court. The EPA countered that the denial was an unreviewable discretionary act.

This case poses two questions. First, do we have subject matter jurisdiction to review the EPA's decision not to make a necessity determination. We hold that we do. Second, was the EPA required to make such a determination. We hold that it was not.

I.

A.

Congress passed the Clean Water Act¹ “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”² The Act bans “the discharge of any pollutant by any person,” unless affirmatively allowed by law.³ In regulating discharge, the Act “anticipates a partnership between the States and the Federal Government,”⁴ with both sovereigns sharing regulatory responsibilities for water protection.⁵

One area where both states and the federal government play a role is in the setting and administration of water quality standards. These regulations “define[ ] the water quality goals of a water body ... by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses.”⁶ The states are the primary player in this process; they are “responsible for reviewing, establishing, and revising water quality standards.”⁷ The federal government plays a secondary role, with important backstop responsibilities. State standards must be submitted to the EPA, the agency tasked with reviewing and approving these standards, to ensure that they are sufficient to “protect the public health or welfare, enhance the quality of water and serve the purposes of this [Act].”⁸ If the state's standards do not pass muster, the EPA specifies changes required for approval.⁹

The EPA may also directly set water quality standards through its own regulations under the two circumstances set out in 33 U.S.C. § 1313(c)(4)(A) and (B) (“section 1313(c)(4) ”).

(A) if a revised or new water quality standard submitted by such State ... for such waters is determined by the Administrator not to be consistent with the applicable requirements of this chapter, or

(B) in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of this chapter.¹⁰

In other words, in order to regulate pursuant to its section 1313(c)(4)(B) powers, the EPA must make what is called a “necessity determination.” If the agency sets water quality standards, it acts through a rulemaking process, and “is subject to the same policies, procedures, analyses, and public participation requirements established for States in these regulations.”¹¹

B.

This case began when a group of environmental organizations petitioned the EPA¹² to “use its powers [pursuant to section 1313(c)(4)(B) ] to control nitrogen and phosphorous pollution” within the Mississippi River Basin and the Northern Gulf of Mexico.

The EPA declined to do so. While the agency agreed that nitrogen and phosphorous pollution “is a significant water quality problem,” it did “not believe that the comprehensive use of federal rulemaking authority is the most effective or practical means of addressing these concerns at this time.” Instead, the EPA said that, because its “long-standing policy, consistent with the CWA, has been that states should develop and adopt standards in the first instance,” and in light of the fact that the states had been “quite active” in addressing water pollution issues, it was appropriate to let the states take the primary role in issuing new standards. In denying the petition, the EPA was explicit that it was “not determining that [new standards] are not necessary to meet CWA requirements,” but rather was “exercising its discretion to allocate its resources in a manner that supports targeted regional and state activities to accomplish our mutual goals of reducing [nitrogen and phosphorous] pollution and accelerating the development and adoption of state approaches to controlling [nitrogen and phosphorous].”

The petitioners filed suit, positing that the EPA had violated the Administrative Procedure Act¹³ and the CWA by declining to make a necessity determination. The EPA moved to dismiss the case on subject matter jurisdiction grounds, arguing that the decision whether to make a necessity determination was a discretionary act that the court lacked authority to review. The parties also cross-moved for summary judgment on the merits.

The district court ruled that it had jurisdiction to review the EPA's decision not to make a necessity determination.¹⁴ It then went one step further. Pursuant to the Supreme Court's decision in Massachusetts v. EPA,¹⁵ it held that the “EPA could not simply decline to make a necessity determination in response to ... [the] petition for rulemaking.”¹⁶ It remanded the case to the agency with orders to conduct a necessity determination.¹⁷ In doing so, the district court declined to issue specific guidance on “the types of factors that EPA can or cannot consider when actually making the necessity determination.”¹⁸

This timely appeal followed.

II.

We review de novo the district court's legal conclusions about its subject matter jurisdiction.¹⁹

A.

We begin with the elementary principle that “the United States, as sovereign, is immune from suit save as it consents to be sued.”²⁰ The petitioners have the burden of proving that Congress has consented to suit by affirmatively waiving sovereign immunity in the specific context at issue.²¹ In the Administrative Procedure Act, the statute governing federal agency operations generally, Congress provided a general waiver of sovereign immunity for “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”²² In light of this language, federal courts must apply a general presumption that they have jurisdiction to review final agency actions.²³ But this waiver is not absolute, and Congress has provided that the APA—and its concomitant grant of judicial review—does not apply in two circumstances: first, if the “statute [ ] preclude[s] judicial review,” an exception not at issue in this case; and second, if “agency action is committed to agency discretion by law.”²⁴

In a quartet of cases, the Supreme Court provided two principles that guide our discretion analysis. The first is that the agency discretion clause “is a very narrow exception” to the principle of judicial review of administrative action.²⁵ It applies only “in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.”²⁶ These are situations where “the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute (‘law’) can be taken to have ‘committed’ the decisionmaking to the agency's judgment absolutely.”²⁷

In determining whether Congress has provided a “meaningful standard,” the court conducts a “careful examination of the statute on which the claim of agency illegality is based.”²⁸ We look first to the statutory text, paying particular attention to the words Congress has chosen. For example, in Webster v. Doe, reviewing a statute that allowed the Central Intelligence Agency Director to terminate an employee, the Supreme Court highlighted the fact that the statute was drawn so that the Director could fire the employee whenever he “ ‘shall deem such termination necessary or advisable in the interests of the United States,’ not simply when the dismissal is necessary or advisable to those interests.”²⁹ This word choice, the Court concluded, “fairly exudes deference to the Director, and appears to us to foreclose the application of any meaningful judicial standard of review.”³⁰ The reviewing court must also look at the structure and purpose of the statute.³¹ Turning again to We...