Lake Carriers' Ass'n v. Environmental Protection Agency
652 F.3d 1
D.C. Cir.2011Background
- EPA issued the Vessel General Permit (VGP) under CWA §402 to cover incidental vessel discharges nationwide.
- The VGP includes approximately 100 state-certification conditions appended as Part VI, reflecting each state’s water-quality standards.
- Lake Carriers' Association and others challenged the final VGP, asserting notice, comment, and economic-analysis defects.
- Ninth Circuit decision vacating the exemptions for incidental vessel discharges prompted EPA to issue the general permit with state-certification conditions.
- EPA had provided public notice for the draft VGP, but petitioners argued that it did not address final-state conditions and potential cumulative effects.
- The DC Circuit denied the petitions, holding EPA could not amend or reject state certifications and that further notice would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| APA notice and comment on final VGP | Lake Carriers argues 401 conditions required further notice. | EPA says 401(a) supersedes APA only where express; otherwise no need for new notice. | No additional notice required; futile to remand for notice. |
| EPA authority to amend or reject state certifications | EPA could alter state conditions to avoid burdens or conflicts. | EPA lacks power to amend/reject state certifications; states set conditions to meet their standards. | EPA could not amend or reject; no need for further comment. |
| Response to comments about inter-state burdens | EPA ignored comments about cumulative state-condition burdens on vessels. | CWA requires state-specific conditions; EPA cannot override; comments irrelevant if no remedy available. | EPA's responses were adequate; no failure to address meaningful points. |
| Regulatory Flexibility Act analysis | EPA failed to consider costs of complying with state conditions in its RFA analysis. | Cost of state conditions need not be included; objections waived for not raised below. | Waived; EPA's analysis sufficient. |
Key Cases Cited
- Northwest Env't Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) (vacated exemption for incidental vessel discharges lacking authority)
- City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) (state authority and certification boundaries under CWA)
- Am. Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir. 1997) (agency power to amend permits; statutory interpretation under CWA)
- National Ass'n of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272 (D.C. Cir. 2005) (APA notice-and-comment applicability to nationwide permits)
- Linemaster Switch Corp. v. EPA, 938 F.2d 1299 (D.C. Cir. 1991) (waiver of arguments not raised before agency)