Natural Resources Defense Council v. United States Environmental Protection Agency
808 F.3d 556
| 2d Cir. | 2015Background
- EPA acted under §402(a) of the Clean Water Act to regulate ballast water discharges via the 2013 Vessel General Permit (VGP).
- Ballast water can carry invasive species and pollutants, enabling nonnative populations in US waters; harms include ecological and economic damage (e.g., zebra mussels).
- Great Lakes Lakers (ships operating there) dominate ballast water transfer and have heightened risk of spreading invasive species.
- EPA previously repealed an exemption for ballast water discharges and issued the 2008 VGP; the 2013 VGP implemented TBELs, WQBELs, and monitoring/recordkeeping.
- NRDC, NWEA, and NWF filed petitions for review challenging the 2013 VGP; petitions were consolidated with related matters; the court remands certain aspects to EPA while leaving the 2013 VGP in place pending new rulemaking.
- The court remands on multiple grounds related to TBELs and WQBELs but denies review on certain viruses/protists TBELs and TBEL monitoring.]
- Note: The background statements above summarize the legally material, underlying facts pertinent to the court’s disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA erred in setting TBELs at the IMO standard. | NWEA claims BAT requires higher limits than IMO. | EPA used IMO as a baseline; SAB allowed range; EPA says no need to exceed. | Remanded; TBELs set at IMO require reconsideration for BAT. |
| Whether onshore ballast water treatment was adequately considered. | EPA should consider onshore treatment as available technology. | EPA limited focus to shipboard treatment due to perceived availability. | Remanded for full consideration of onshore treatment. |
| Whether pre-2009 Lakers’ exemption from numeric TBELs was arbitrary and capricious. | Exemption was inappropriate; onshore options were overlooked. | Exemption based on lack of available onboard/onshore options. | Remanded; exemption deemed arbitrary and capricious. |
| Whether WQBELs were validly established as narrative limits rather than numeric. | Narrative WQBELs fail to assure compliance with water quality standards. | Narrative limits are permissible where numeric limits are infeasible. | Remanded; narrative WQBELs deemed insufficient to ensure compliance. |
| Whether TBEL and WQBEL monitoring/ reporting requirements ensure compliance. | Monitoring for TBELs adequate; WQBEL monitoring insufficient. | Monitoring strategy permissible given current technology limits. | Remanded; lack of WQBEL monitoring deemed arbitrary and capricious. |
Key Cases Cited
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (U.S. 1984) (agency interpretations reviewed for reasonableness when statute silent or ambiguous)
- Islander E. Pipeline Co. v. McCarthy, 525 F.3d 141 (2d Cir. 2008) (agency must articulate satisfactory explanation for its action and consider relevant data)
- Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) (permits must ensure compliance with all applicable effluent limits and standards)
- NRDC v. EPA, 822 F.2d 104 (D.C. Cir. 1987) (BAT and technology-forcing purposes under CWA; cost considerations discussed)
- Massachusetts v. EPA, 549 U.S. 497 (U.S. 2007) (uncertainty does not excuse EPA from regulating when obligated by statute)
- Nat’l Crushed Stone Ass’n v. EPA, 449 U.S. 64 (U.S. 1980) (BAT and the goal of eliminating pollutants; technology-forcing framework)
- Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620 (2d Cir. 1976) (availability of technology across industries considered under BAT)