415 F.Supp.3d 775
N.D. Ohio2019Background
- Plaintiffs (Environmental Law & Policy Center, Advocates for a Clean Lake Erie, and Lucas County Board of Commissioners) challenge EPA’s July 9, 2018 approval of Ohio EPA’s 2018 §303(d) impaired-waters list for Western Lake Erie.
- Ohio designated Western Lake Erie impaired for nutrient-driven harmful algal blooms but assigned the lake a "low" priority for developing a phosphorous TMDL, favoring alternative measures (Domestic Action Plan, GLWQA) and did not submit a formal Category 5-alternative or any TMDL timetable.
- Plaintiffs allege EPA’s approval violated the Clean Water Act and the APA because Ohio’s priority ranking failed to “take into account” severity of pollution and uses of the waters, and that Ohio’s conduct amounts to a "constructive submission" of no TMDL, triggering EPA’s nondiscretionary duty to act.
- EPA moved to dismiss under Rule 12(b)(6); it argued it only reviews whether a state submitted a priority ranking, not the substance, and that a constructive-submission claim is premature.
- The court denied EPA’s motions to dismiss: it found plaintiffs plausibly alleged (1) an APA arbitrary-and-capricious claim that EPA approved a priority ranking that did not consider required factors, and (2) a plausible constructive-submission claim that Ohio has effectively refused to develop a TMDL for Western Lake Erie.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA's approval of Ohio's priority ranking is reviewable under the APA and CWA | EPA must ensure the state's ranking "takes into account" severity of pollution and uses; Ohio's low ranking contradicts its own statements that the lake is a high priority | EPA may only confirm a state submitted a priority ranking consistent with 40 C.F.R. §130.7(b)(4); it lacks authority to judge the state's substantive prioritization | Court: reviewable; plaintiffs plausibly allege EPA acted arbitrarily/capriciously by approving a ranking that appears not to account for required factors — denial of dismissal on this claim |
| Whether EPA's approval was arbitrary and capricious (5 U.S.C. §706(2)(A)) | Ohio called the lake a "high" priority elsewhere yet set a "low" TMDL priority; EPA gave no rational connection between factors and the low ranking | EPA relied on Ohio's statement that alternative measures make immediate TMDL unnecessary and found the state's responses reasonable | Court: complaint plausibly alleges lack of rational connection; denial of dismissal on APA arbitrary-and-capricious claim |
| Whether Ohio's actions amount to a "constructive submission" of no TMDL, triggering EPA's mandatory duty to approve/disapprove under §1313(d)(2) | Low priority, no timetable, no 5-alt submission, and no contingency plan if alternatives fail show clear and unambiguous refusal to submit a TMDL | Too early to find constructive submission; only weeks passed since listing and state still calls basin a priority for action | Court: doctrine applies here; facts plausibly support that Ohio has constructively submitted "no TMDL" for Western Lake Erie — denial of dismissal on this claim |
| Validity and treatment of Lucas County's separate APA/CWA claim (failure to disapprove Ohio) | EPA unlawfully acquiesced to Ohio's refusal to develop a TMDL | Claim is vague/duplicative and better framed as an unreasonable delay or mandatory duty claim | Court: count challenging EPA's failure to act (constructive submission) allowed; other count held in abeyance pending further scheduling to clarify scope |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for Rule 12(b)(6) pleading)
- Jama v. Dep’t of Homeland Sec., 760 F.3d 490 (definition of final agency action)
- Sierra Club, Inc. v. Leavitt, 488 F.3d 904 (EPA approval of state priority rankings is reviewable as to whether required factors were considered)
- Friends of the Wild Swan, Inc. v. U.S. EPA, 130 F. Supp. 2d 1184 (district court reviewed EPA approval of state's priority ranking)
- Ohio Valley Envtl. Coal., Inc. v. Pruitt, 893 F.3d 225 (recognizes constructive-submission doctrine and EPA duty to act)
- San Francisco BayKeeper v. Whitman, 297 F.3d 877 (constructive submission can trigger EPA’s nondiscretionary duty)
- Hayes v. Whitman, 264 F.3d 1017 (constructive submission doctrine)
- Scott v. City of Hammond, 741 F.2d 992 (courts may compel EPA to act when states refuse to produce TMDLs)