984 F. Supp. 2d 289
M.D. Penn.2013Background
- EPA promulgated the Chesapeake Bay TMDL (Final TMDL) on Dec. 29, 2010, allocating nitrogen, phosphorus, and sediment loads across six states and DC and setting implementation targets (60% by 2017; complete by 2025).
- Plaintiffs (farm and fertilizer trade groups, poultry/crop associations) sued to vacate the TMDL, arguing EPA exceeded its Clean Water Act (CWA) authority, acted arbitrarily and capriciously, and violated the APA notice-and-comment requirements.
- Multiple state and nonprofit intervenors (environmental groups and municipal wastewater associations) supported EPA; extensive administrative record and long history of multi-state Chesapeake Bay planning informed the TMDL (decades of agreements, WIPs, consent decrees, executive order).
- Procedurally: the court conducted APA review on cross-motions for summary judgment, applied Chevron deference to EPA where statutory interpretation implicated agency expertise, and reviewed standing, scope of EPA authority, APA procedure, and modeling/data challenges.
- Key contested features: EPA’s use of WLAs and LAs (including sector and facility-level allocations), ‘‘backstop’’ adjustments where states’ WIPs were judged inadequate, a “reasonable assurances” requirement, interstate (upstream-state) allocations, a 45-day public comment period, and reliance on complex models and data inputs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Plaintiffs lack evidence of representational standing (untimely declarations) | Plaintiffs are objects of the rule; economic injuries are concrete and redressable | Plaintiffs have Article III standing; declarations sufficient and not prejudicially late |
| EPA authority to allocate WLAs/LAs (TMDL definition) | CWA authorizes only a total load; EPA cannot allocate between point/nonpoint or to sectors/individual sources | CWA ambiguous re TMDL components; EPA’s longstanding interpretation (sum of WLAs and LAs) is reasonable and entitled to Chevron deference | EPA permissibly defined TMDL as sum of WLAs and LAs; deference applies |
| Detailed sector/facility allocations and ‘‘implementation’’ | The granularity (sector and 478 facility WLAs) and EPA direction amount to an unlawful federal implementation plan that invades state implementation authority | The allocations were developed cooperatively (states’ WIPs informed them); EPA retained supervisory/permit authority and limited backstops; TMDL is informational, not an implementation plan | The detail does not convert the TMDL into an unlawful federal implementation plan; cooperative federalism process permissible |
| Backstop adjustments & locking-in allocations | EPA unlawfully substituted backstops and ‘‘locked in’’ allocations and deadlines, coercing states | CWA §303 and §117(g) authorize EPA oversight and substitution where state submissions are inadequate; allocations are not irrevocable — states may propose revisions and permits must be consistent with but not identical to WLAs | EPA lawfully used backstops where it disapproved state WIPs; allocations are not bindingly fixed and framework permits adjustments |
| Upstream-state allocations | EPA lacked authority to allocate loads to headwater (upstream) states | Watershed approach is reasonable and necessary to implement downstream standards; regulations and precedent support applying downstream standards upstream | EPA may set watershed-wide allocations, including upstream sources, to achieve downstream water quality standards |
| APA notice and modeling disclosure | 45-day comment period and delayed/partial release of model documentation prejudiced public comment; modeling/data flawed | 45 days exceeded APA minimum; models, code, and supporting documentation were available (some materials provided later in period); plaintiffs fail to show specific prejudice; agency modeling decisions entitled to deference | APA procedural obligations satisfied; plaintiffs failed to prove prejudicial omission; modeling/data choices were rational and not arbitrary |
Key Cases Cited
- PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (recognizes cooperative federalism in CWA framework)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (establishes two-step deference for agency statutory interpretation)
- Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir.) (upholds EPA TMDL authority re point and nonpoint sources; discusses TMDL scope)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (sets arbitrary-and-capricious review standard for agency actions)
- Anacostia Riverkeeper v. Jackson, 798 F. Supp. 2d 210 (D.D.C.) (discusses core TMDL requirement to allocate among sources and reasonableness of WLAs/LAs)
- Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir.) (standing in rulemaking context; need for evidence of concrete injury)
- Arkansas v. Oklahoma, 503 U.S. 91 (supports regulating upstream discharges to meet downstream standards)