48 F.4th 67
2d Cir.2022Background
- EPA designated a new long-term dredged material disposal site in eastern Long Island Sound (the 'Eastern Site') by final rule in Dec. 2016 after the Corps completed a DMMP estimating 30-year dredge needs. Two existing long-term sites (Western and Central) and two temporary eastern sites existed previously.
- New York State and the Town of Southold objected under the Coastal Zone Management Act (CZMA), arguing the designation was not 'consistent to the maximum extent practicable' with their approved coastal management programs; EPA reviewed and concluded the designation was fully consistent and proceeded without state concurrence, declining NOAA mediation.
- New York sued under the Administrative Procedure Act (APA) challenging the CZMA consistency determination and other MPRSA-based claims; Southold intervened and later raised related claims and a NEPA claim. The district court granted summary judgment to EPA and Connecticut; Plaintiffs appealed.
- The Second Circuit assessed the proper standard of review and whether EPA’s CZMA consistency determination was arbitrary and capricious given the administrative record (including Corps’ DMMP capacity estimates and site-specific environmental analyses).
- The court affirmed: it held APA arbitrary-and-capricious review governs CZMA consistency challenges and concluded EPA provided a rational explanation for designating the Eastern Site; Southold’s NEPA claim was waived for failure to press it below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for CZMA consistency determinations | New York: CZMA challenges require de novo review or review 'not in accordance with law' because CZMA/NOAA regs set substantive consistency obligations and EPA does not 'administer' CZMA | EPA/Defendants: CZMA provides no separate review standard; the dispute is factual/technical and implicates agency expertise, so APA arbitrary-and-capricious review applies | Arbitrary-and-capricious (APA) review governs CZMA consistency challenges; Chevron deference is not implicated here (court affirmed ordinary APA review) |
| Whether EPA adequately justified need for Eastern Site (capacity/beneficial reuse) | New York: Western/Central sites + projected beneficial reuse (sand) suffice; Eastern Site unnecessary | EPA: DMMP projections show potential capacity shortfall, uncertainty about beneficial reuse, logistical/environmental concerns and transit distances justify regional site | EPA’s consistency determination was reasonable and not arbitrary and capricious; court upheld EPA’s rationale |
| Use of cost/financial considerations and transplantation of prior site restrictions | New York: EPA impermissibly relied on cost/funding and unilaterally transplanted restrictions from other sites to cure consistency problems | EPA: Considered increased costs to taxpayers/private parties from longer transits (not agency budget shortfall); applied consistent restrictions across Sound for regulatory uniformity | Court held EPA’s cost-related considerations were permissible and the imposition of site use restrictions did not render the decision arbitrary |
| Southold’s CZMA and NEPA claims (procedural preservation) | Southold: EPA designation conflicts with multiple Southold Program policies; EPA violated NEPA by not taking a 'hard look' | EPA: Record shows responses addressing water quality, habitat, monitoring and site delineation; many Southold objections were not raised in notice-and-comment or below | Court found EPA’s CZMA consistency with Southold Program adequate; Southold’s NEPA claim waived for failure to raise in district court/briefing |
Key Cases Cited
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (technical, factual disputes implicating agency expertise warrant deferential APA review)
- Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) (definition and application of arbitrary-and-capricious standard)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (courts should not substitute their judgment for agencies; limits of judicial review under APA)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (framework for deference to agency statutory interpretations; distinguished here)
- Karpova v. Snow, 497 F.3d 262 (2d Cir. 2007) (de novo review of administrative record on APA summary judgment)
- New York Public Interest Research Group, Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005) (when a statute provides no standard of review, APA governs)
- Akiak Native Community v. United States Postal Service, 213 F.3d 1140 (9th Cir. 2000) (applying Marsh to CZMA challenges)