15 F.4th 966
9th Cir.2021Background
- Montana adopted nitrogen and phosphorus water-quality criteria for wadeable streams (2014); EPA approved those standards (2015).
- In 2017 Montana requested an EPA-approved variance for 36 municipal wastewater treatment facilities, allowing higher N/P discharges for up to 17 years because meeting base standards would require reverse-osmosis and impose substantial community costs.
- EPA evaluated Montana’s evidence, applied its guidance (treating >2% of median household income as a substantial economic impact), found the variance set the "highest attainable condition," and approved the variance.
- Upper Missouri Waterkeeper challenged EPA’s approval under the APA, arguing the Clean Water Act forbids consideration of compliance costs when approving standards/variances.
- The district court upheld EPA’s authority to consider costs but vacated the variance term as arbitrary, reasoning the variance must (1) require immediate compliance with the highest attainable condition and (2) require attainment of base standards by the term’s end.
- The Ninth Circuit reversed the district court’s vacatur (in relevant appeals), held EPA reasonably may consider compliance costs under Chevron, and instructed the district court to enter judgment for EPA and intervenors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 33 U.S.C. § 1313(c)(2)(A) bars EPA from considering compliance costs when approving state water-quality standards or variances | Waterkeeper: the statute’s text and list of uses show Congress did not permit cost consideration; silence means prohibition | EPA: the statute is silent on costs; EPA’s regulations reasonably interpret the statute to permit considering compliance costs tied to attainability | Court: Chevron step 1 — statute silent; step 2 — EPA’s interpretation is reasonable and permits cost consideration |
| Whether EPA’s variance regulation requires (a) immediate compliance with the highest attainable condition at the start of the variance and (b) attainment of base water-quality standards by the end of the variance | Waterkeeper/district court: "during/throughout the term" language means immediate compliance and eventual attainment of base standards | EPA/intervenors: regulation contemplates time-limited interim standards; variance exists to allow time to achieve the highest attainable condition, not necessarily the base standards | Court: regulation unambiguously does not require immediate compliance; variance term need only be "as long as necessary" to reach the highest attainable condition and need not guarantee attainment of base standards by term end |
Key Cases Cited
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (established the two-step framework for reviewing agency statutory interpretation)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarified limits and requirements for deferring to an agency’s interpretation of its own regulations)
- Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001) (refused to infer Congress allowed consideration of costs where the statute explicitly omitted them)
- Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) (construed statutory silence regarding costs as not necessarily precluding agency consideration of costs)
- Mississippi Commission on Natural Resources v. Costle, 625 F.2d 1269 (5th Cir. 1980) (distinguishes use-attainability/designation from water-quality criteria and the role of scientific rationale)