918 F.3d 324
4th Cir.2019Background
- West Virginia submitted a site-specific, less stringent copper water-quality standard (based on a Water Effect Ratio, WER) for the Kanawha River reach receiving discharges from the Charleston Sanitary Board; EPA review was triggered under the Clean Water Act (CWA).
- EPA missed the statutory 60-day review deadline; the Sanitary Board sued under the CWA citizen-suit provision to compel a timely decision and later alleged EPA had a nondiscretionary duty to approve the standard.
- After litigation began, EPA issued a Final Disapproval Letter applying newer Biotic Ligand Model (BLM) methods and concluded West Virginia’s proposed standard would not protect aquatic life.
- The Sanitary Board amended to assert APA claims (arbitrary and capricious, contrary to law, and procedural violations), and later a new NPDES permit was issued removing a copper limit, prompting mootness arguments at the district court.
- The district court found EPA had discretion to approve or disapprove state standards and dismissed the CWA claims; it dismissed APA claims as moot due to the new permit. On appeal the Fourth Circuit (Wilkinson, J.) affirmed on the merits, holding EPA had discretion and did not act arbitrarily or capriciously.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA’s approval/disapproval of state water-quality standards is nondiscretionary under the CWA (i.e., subject to citizen-suit compulsion to approve) | Sanitary Bd.: CWA requires EPA to determine consistency and, where consistent, must approve — so approval is nondiscretionary and enforceable by suit | EPA: Statute requires a determination within time limits but leaves the substance of that determination (scientific judgment whether standards are consistent) to agency discretion | Held: EPA has discretion to approve or disapprove; citizen suits may compel a timely decision but not dictate the substantive scientific judgment required to approve standards. |
| Whether EPA’s Final Disapproval was arbitrary, capricious, or unsupported by the administrative record under the APA (including whether post-deadline materials could be considered and whether EPA impermissibly replaced its prior staff view) | Sanitary Bd.: EPA’s final letter (produced after the statutory deadline) cannot be used; EPA improperly relied on BLM to overturn prior staff comments supporting WER-based result | EPA: Courts review the full administrative record that the agency relied on; agency may use updated science (BLM) and must be allowed to explain its final decision even if made after the statutory deadline | Held: Court may consider the full administrative record, including post-deadline final decision; EPA’s use of BLM and its explanation were reasonable and not arbitrary or capricious. |
Key Cases Cited
- Miccosukee Tribe of Indians v. United States, 541 U.S. 95 (defining "point source" under the CWA)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (private suits may compel only nondiscretionary agency duties)
- Heckler v. Chaney, 470 U.S. 821 (agency enforcement and substantive decisionmaking often discretionary)
- Miccosukee Tribe of Indians of Fla. v. EPA, 105 F.3d 599 (11th Cir.) (nondiscretionary duty is prerequisite for jurisdiction in CWA citizen suits)
- Camp v. Pitts, 411 U.S. 138 (judicial review focuses on the administrative record)
- Florida Lime & Power Co. v. Lorion, 470 U.S. 729 (presumption that agency record is exclusive for review)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard and grounds for setting agency action aside)
- Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (courts may uphold agency decisions of less than ideal clarity if path reasonably discernible)
- Judulang v. Holder, 565 U.S. 42 (agency must provide a reasoned explanation for its action)