Larry Askins v. Ohio Department of Agriculture
809 F.3d 868
| 6th Cir. | 2016Background
- Plaintiffs Larry and Vickie Askins sued U.S. EPA, Ohio EPA, and Ohio Dept. of Agriculture (ODA) under the Clean Water Act (CWA), alleging improper transfer and administration of Ohio’s NPDES program authority over animal feeding operations.
- Ohio law (2001) authorized ODA to assume part of the state NPDES program; ODA applied to U.S. EPA in 2006 and submitted a revised application in 2015.
- Askinses alleged (1) Ohio EPA failed to notify U.S. EPA of the transfer until years later; (2) ODA administered the program without U.S. EPA approval; (3) U.S. EPA permitted the transfer without approval; and (4) U.S. EPA allowed ODA to administer without approval.
- District court dismissed for lack of subject-matter jurisdiction; plaintiffs appealed.
- Sixth Circuit affirmed, holding the CWA does not authorize citizen suits against regulators for procedural or program-administration failures and that the specific notification rule and §1314-based claims are not actionable permit “conditions.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio EPA/ODA violated a permit condition by failing to notify U.S. EPA of transfer | Failure to notify (40 C.F.R. §123.62(c)) is a permit condition and thus enforceable by citizen suit | Notification is a program-level requirement under §1314, not an NPDES permit condition; citizen suits are limited | Held: Not a permit condition; violation not actionable in a citizen suit |
| Whether violation of the notification regulation is actionable in a CWA citizen suit | Any procedural condition tied to NPDES is enforceable by citizens | CWA §1342(k) limits citizen suits to certain statutory provisions; §1314-based rules are excluded | Held: Violation of the notification requirement is not within citizen-suit scope |
| Whether citizens may sue state regulators for failing to follow procedural/regulatory requirements | Citizens may enforce purely procedural permit-related requirements under the CWA | Citizen suits target polluters; allowing suits against regulators would conflict with the CWA’s enforcement scheme and agency remedies | Held: CWA does not permit citizen suits against regulators for procedural/program-administration failures |
| Whether U.S. EPA failed to perform a non-discretionary duty by not holding a hearing or otherwise acting | U.S. EPA was required to conduct a hearing when a State is not administering an approved program | The statute requires withdrawal after a hearing, but holding a hearing is discretionary; no nondiscretionary duty to compel | Held: No non-discretionary duty identified; claims against U.S. EPA dismissed for lack of jurisdiction |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (statutory-interpretation limits on implied causes of action)
- Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (limits on citizen suits and distinction between regulators and polluters)
- Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49 (citizen suits as supplement to government enforcement)
- Sierra Club v. Korleski, 681 F.3d 342 (C.A.6: citizen suits do not permit actions against regulators for regulatory functions)
- City of Cleveland v. Ohio, 508 F.3d 827 (construction of CWA citizen-suit scope)