Mo. Coal. for Env't Found. v. Wheeler

MISSOURI COALITION FOR THEENVIRONMENT FOUNDATION, Plaintiff, v. ANDREW R. WHEELER, et al., Defendants.

Case No. 2:19-cv-04215-NKL

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

May 31, 2021

ORDER

Before the Court is Plaintiff Missouri Coalition for the Environment Foundation's Motion for Summary Judgment, Doc. 56, Defendant Environmental Protections Agency's Cross-Motion for Summary Judgment, Doc. 61, and Intervenor-Defendant State of Missouri's Cross-Motion for Summary Judgment, Doc. 66. The Coalition seeks judicial review of EPA's decision approving the State of Missouri's proposed water quality standards under the Administrative Procedure Act ("APA"). The Coalition moves for summary judgment in their favor and a declaratory judgment that EPA abused its discretion and acted contrary to law when it approved the State's water quality standards for nutrient pollutants in lakes which were submitted to EPA in 2018. It requests an injunction setting aside that approval and an order awarding costs and fees. EPA and the State, meanwhile, move for Summary Judgment in their favor. For the reasons stated below, the Coalition's Motion is denied and EPA's and the State of Missouri's Motions are granted. The Coalition's Complaint is dismissed.

The Coalition is a non-profit environmental organization challenging EPA's decision to approve water quality standards proposed by the State of Missouri for nutrient pollutants—namely, nitrogen, phosphorous, and chlorophyll—in Missouri lakes. In excess, these pollutants can cause dangerous algae outbreaks that threaten the health of both Missourians who depend on Missouri's lakes for drinking water and recreation as well as the wildlife who live in and around them. Missouri previously proposed water quality standards for nutrient pollutants in 2009. These standards set hard limits on the amount of nitrogen, phosphorous, and chlorophyll that could be present in Missouri lakes. In 2011, EPA rejected these standards because (1) it could not determine whether the standards were based on a sound scientific rationale; and (2) the State did not indicate what specific use the standards were intended to protect—for instance, whether the standards were meant to protect the drinking water supply in the lakes or their ability to sustain a diverse array of wildlife. AR 3006-07. EPA asked the State to (1) supply data that would allow EPA to determine if its standards were based on sound science; and (2) specifically identify what lake uses the standards were intended to protect. AR 3008. It recommended, but did not require, that the State's new approach maintain a hard limit on the amount of nitrogen and phosphorous allowed in Missouri lakes. AR 3007.

In 2018, the State returned with standards that included adequate technical support and a specific use designation, i.e., to protect the sportfish in Missouri lakes. The State proposed a "combined criteria framework" that combines the use of numeric criteria for chlorophyll—where the state establishes a hard limit of how much chlorophyll can be in a lake—and narrative criteria—where the state makes qualitative observations of a lake's condition—to ensure its lakes remains usable as sport fisheries. The standards did not include hard limits for nitrogen or phosphorous, which are the causal factors of nutrient pollution. Most of the State's proposed narrative criteria duplicated already-existing narrative criteria in Missouri's quality standards that apply to allwaterbodies at all times. EPA approved the State's 2018 standards after finding they would protect the sport fishing as well as the drinking water use. AR 4041.

Between the 2011 rejection and the 2018 approval, EPA and the State often engaged in dialogue to ensure that any proposed standards would comport with the CWA. In 2015, the State circulated new proposed standards that set numeric criteria for chlorophyll but not for nitrogen or phosphorous. In 2016, EPA in response recommended the State adopt numeric criteria for every nutrient pollutant—nitrogen, phosphorous, and chlorophyll. The State did not follow this advice—its 2018 proposal only set numeric criteria for chlorophyll. Nitrogen and phosphorous were measured only as "screening values"—meaning their measurement in excess of a certain concentration would trigger additional screening of the lake but would not cause an immediate finding of impairment. Outside of this specific rulemaking process, EPA "has long recommended that states adopt numeric criteria" for nitrogen and phosphorous." AR 4017.

Viewed as a whole, EPA's actions beginning with its 2011 Disapproval Decision and culminating in its 2018 Approval Decision raise significant questions. In approving the State's 2018 proposal, the EPA abandoned its well-reasoned 2016 recommendation that the State adopt numeric criteria for nitrogen and phosphorous. It did so after finding the State lacked an adequate scientific basis to establish numeric criteria for those nutrients, even though the agency had developed a preference for establishing numeric criteria for all pollutants in lakes, presumptively based on scientific data. EPA recognized Missouri's decision to adapt standards for the protection of sport fishing rather than drinking water but decided it did not matter legally because the State's use of narrative factors provided sufficient protection to the drinking water supply use. EPA's decision leaves Missourians in virtually the same position they were in in 2009—protected by general narrative criteria with the new addition of a hard chlorophyll cap to remediate the mostegregious algae outbreaks—in other words, waiting to let the nutrient pollution cause damage to the lakes requiring remediation rather than preventing the nutrient pollution in the first place. In short, EPA contemplated numeric criteria for nitrogen and phosphorous in 2011, recommend numeric criteria for those pollutants in 2016, and then in 2018 concluded the State lacked a scientific basis to establish numeric criteria. The sequence of events might lead reasonable Missourians to wonder what scientific analysis EPA performed in the interim, at what cost, and to what benefit.

Nonetheless, the Court's review of these decision under the APA is very limited. It must only consider whether there is any rational basis for the APA's determination that the water quality standards proposed by the State in 2018 would protect the designated uses of Missouri's lakes. On this record, EPA has supplied a rational basis for its determination that the proposed standards will do so, even if it cannot supply a rational basis for how its decision comports with its 2011 Disapproval Decision or 2016 recommendation.

Before proceeding, a note on terminology. The briefing and record in this case are replete with jargon—response impairment thresholds, biological assessment endpoints, nutrient screening thresholds, nutrient screening endpoints, etc. Although these terms are used in different ways by different parties at different times, they usually describe the same basic concepts. For the sake of simplicity, the Court will adopt a single term and strive to use it consistently in this Order. As such, the Court will use the term "numeric criteria" to describe standards that establish a hard limit on the amount of pollutant in a lake that, if met or exceeded, will cause the lake to be considered impaired automatically. It will use the term "narrative criteria" to describe standards that rest on qualitative descriptions of a lake—for instance, that it smells, is discolored, or is turbid. It will use the term "screening value" to describe standards that establish an amount of pollutant in a lakethat, if exceeded, will trigger additional screening to determine if the lake is impaired. It will use the term "screening factors" to describe the five factors the State proposes to assess if additional screening is triggered. The term "impaired" simply means the lake cannot be used in accordance with its designated use—for instance, that water in a lake with a drinking water use cannot be made potable, or that a lake with an aquatic life use cannot sustain the intended wildlife population.

a. Background

i. Statutory Framework

The purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The CWA requires states to develop water quality standards for all navigable bodies of water within their jurisdiction. See 33 U.S.C. § 1313(a). EPA must evaluate any new or revised state standards to ensure compliance with the CWA. 33 U.S.C. §§ 1313(c)(2)(A), (c)(3). If EPA disapproves the standards, it must notify the state within 90 days and specify changes for the state to make. 33 U.S.C. § 1313(c)(3). The state then has an additional 90 days to revise its standards. Id. If it fails to do so, EPA "shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved." 33 U.S.C. § 1313(c)(4).

The CWA requires states to establish water quality criteria that specify the amount of pollutant that can be in a body of water. 40 C.F.R. § 131.3(b). Criteria can be narrative in form, meaning they can describe what a body of water must look and smell like, or they can be numeric, meaning they can provide a quantitative and precisely measurable limit on how much pollutant can be present. 40 C.F.R. § 131. Since the 1990s, EPA has favored the use of numeric criteria, and has provided support for states seeking to implement numeric criteria. In this case, the pollutants at issue are nutrient pollutants: nitrogen, phosphorous, and chlorophyll. Nitrogen and phosphorousare regarded as "causal parameters" because they are the primary ingredients in algae, and in high enough quantities will cause algae growth in a body of water. Chlorophyll is regarded as a "response parameter," because...