Riverkeeper v. United States Environmental Protection Agency
806 F.3d 1079
| 11th Cir. | 2015Background
- Environmental groups petitioned the EPA to withdraw Alabama’s authorization to administer the NPDES program, alleging 26 program deficiencies.
- EPA issued an extensive interim response: it found 22 deficiencies did not warrant withdrawal proceedings, expressed significant concerns about the remainder, and deferred a final decision while giving Alabama an opportunity to address concerns.
- The groups appealed the EPA’s findings as to some of the 22 items the EPA declined to treat as grounds for withdrawal.
- EPA and Alabama moved to dismiss for lack of appellate jurisdiction, arguing the interim response is not a final "determination" under 33 U.S.C. § 1369(b)(1)(D).
- The Eleventh Circuit treated whether §1369(b)(1)(D) permits immediate review of partial/interim EPA findings and whether such review would disrupt the administrative process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1369(b)(1)(D) authorizes immediate appellate review of EPA interim findings on a State NPDES program | §1369(b)(1)(D) allows direct review of any EPA "determination" regarding a State permit program, so the interim findings are reviewable now | The interim findings are not a final "determination" and therefore not reviewable under §1369(b)(1)(D) | Held: No jurisdiction — §1369(b)(1)(D) requires a definitive agency determination; interim findings are not reviewable now |
| Whether the interim report constitutes "final agency action" under the APA (5 U.S.C. §704) | The interim findings are sufficiently conclusive to be final agency action under APA | The report is preliminary, subject to change, and not the consummation of decisionmaking | Held: Not final agency action — the report is provisional and subject to revision |
| Whether immediate review would disrupt the administrative process (pragmatic finality) | Immediate review is appropriate despite ongoing agency process | Review now would interfere with EPA–State cooperative deliberations and could disrupt remediation opportunities | Held: Review now would disrupt the administrative process; pragmatic finality favors withholding review |
| Whether EPA’s decision to commence withdrawal proceedings is discretionary or mandatory | Plaintiffs implicitly argue EPA should be compelled to act on alleged deficiencies | EPA contends the decision to initiate withdrawal is discretionary after notice/hearing | Held: EPA’s decision to commence withdrawal is discretionary; interim findings may be revisited before any mandatory statutory step occurs |
Key Cases Cited
- Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) (describing NPDES as federal permit program)
- Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (discussing state administration of delegated federal permitting programs)
- Fed. Power Comm’n v. Metro. Edison Co., 304 U.S. 375 (1938) (presumption against review of preliminary or procedural administrative orders)
- Bell v. New Jersey, 461 U.S. 773 (1983) (requiring final agency action for judicial review absent clear statutory language)
- Bennett v. Spear, 520 U.S. 154 (1997) (defining final agency action for APA purposes)
- Heckler v. Chaney, 470 U.S. 821 (1985) (noting general unsuitability of judicial review of agency refusals to enforce)
- Save the Bay, Inc. v. EPA, 556 F.2d 1282 (5th Cir. 1977) (declining review where administrative process had not produced a definitive EPA determination)
- Jim Walter Resources, Inc. v. Fed. Mine Safety & Health Review Comm’n, 920 F.2d 738 (11th Cir. 1990) (applying presumption favoring finality even where statute uses terms like "order")
- Sierra Club v. EPA, 377 F.Supp.2d 1205 (N.D. Fla. 2005) (discussing discretionary nature of EPA withdrawal under §1342(c)(3))