In 2012, the US EPA proposed a Vessel General Permit to regulate ballast water discharges pursuant to the Clean Water Act. Ballast water from other regions is a significant source of invasive species in the Great Lakes. Numerous environmental organizations commented on the permit proposal, generally criticizing it for using too weak a standard, exempting a large category of vessels, and not requiring compliance for several years (see this prior post). After the EPA finalized the Vessel General Permit despite these objections, the National Wildlife Federation filed suit in the U.S. District Court for the District of Columbia seeking a temporary restraining order and preliminary injunction against a permitee in the Great Lakes. In National Wildlife Federation v. United States Environmental Protection Agency, the court rejected NWF’s legal claims and dismissed the suit.
First some background on the Clean Water Act and state certification process. Pursuant to the CWA’s National Pollutant Discharge Elimination System regulations, the EPA may issue a general permit covering “one or more categories or subcategories of discharges … within a geographic area.” 40 C.F.R. § 122.28(a)(1). When an applicant seeks such a permit, it must receive certification from the state showing that, among other things, such discharges will also be in compliance with appropriate state laws. 40 C.F.R. § 124.53. The final permit may not be issued by the EPA until the state issues or waives such certification, and the state is given 60 days to grant or deny it.
Before issuing a final permit, the EPA releases a draft permit and allows for a notice and comment period and acceptance of state certifications. If a state does not act on the certifications within 60 days, the EPA sends the draft permit to the state, at which point it has 60 days before its right to certify is waived. 40 C.F.R. § 124.53(c). In addition, “if there is a change in the state law or regulation upon which a certification is based,” a modified certification may be issued by the state. 40 C.F.R. § 124.55(b). If this occurs before a final VGP is issued, the EPA shall ensure that the permit is consistent with the updated, more stringent conditions. If, however, the modified certification is received by the EPA after final issuance, the EPA “may modify the permit on request of the permitee only to the extent necessary to delete any conditions based on a condition in a certification invalidated” by a court or appropriate agency. 40 C.F.R. § 124.55(b).
The dispute began in 2009 when states and environmental organizations filed suit over a VGP issued by the EPA on December 29, 2008. After resolving their differences though a consent decree, the EPA proposed a new VGP on December 8, 2011 that would “authorize discharges incidental to the normal operation of non-military and nonrecreational vessels greater than 79 feet in length” and would propose more stringent numeric effluent limitations applicable to vessels with ballast water tanks. The proposed permit was then sent to the states for certification. The NWF submitted comments to the New York State Department of Environmental Conservation regarding the need for more stringent requirements on its draft certification. None of the suggested changes were in the certification, and NWF filed suit in the Supreme Court of the State of New York.
The final permit was issued by the EPA on April 26, 2013, and the NWF also filed suit in the District Court for the District of Columbia, seeking a temporary restraining order and preliminary injunction. It claimed that the EPA was required “to incorporate conditions in the VGP if New York deems them necessary to assure compliance with state water quality standards,” regardless of when the certification is modified.
The EPA moved to dismiss NWF’s compliant for lack of subject matter jurisdiction and untimely challenge. The court's opinion first stated that an “as-applied” challenge must be based on final agency action, which it said occurs when (1) an action marks the consummation of an agency’s decisionmaking process, and (2) the action is one which has determined legal rights or obligations, or from which legal consequences will flow. Under this analysis, the court held that no final agency action had occurred.
First, even though the final VGP was issued, the state of New York had not yet attempted to add more stringent conditions to it, since no decision had been made regarding NWF’s challenge in the New York Supreme Court. Thus, the EPA had not yet made a final decision on any potential amendments to the permit, and therefore had not taken a final agency action. Moreover, NWF claimed that the EPA had had no discretion to alter the permit (until a request is made by a state agency) since the regulation was enacted in 1980. In response, the court said that “the Plaintiff’s cause of action accrued in 1980” because that is the point at which the EPA gave up its discretion in the matter via agency regulations.
Second, the court held that the VGP had no legal consequences because the obligations of the permitee would not be determined until a state actually revised its conditions of the permit. Essentially, the EPA had followed all of its statutory guidelines in issuing the VGP, and until the VGP was challenged by a state, no final action had been taken and no legal consequences came about as a result. Finally, the court rejected NWF’s argument that its challenge should fit into an exception to the finality requirement.
As the decision is based on well-established administrative law principles and doctrines of finality, timing, and jurisdiction, the case is not likely to alter the legal landscape of CWA regulation. However, it is a setback for environmental advocates as they continue to aggressively push for stricter ballast water regulation to prevent the spread of invasive species in the Great Lakes.
Thanks to Kyle M. Peczynski (B.A., University of Michigan; J.D., Wayne State University Law School, expected 2014) for this student post.