Civil No. 16-1861 (JDB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
September 21, 2020
JOHN D. BATES, United States District Judge
MEMORANDUM OPINION
Plaintiff Natural Resources Defense Council, Inc. (“NRDC“) has moved under
Background
I. The Clean Water Act
The Clean Water Act, passed in 1972, requires states and the District of Columbia to “institute comprehensive water quality standards establishing water quality goals for all intrastate waters.” PUD No. 1 of Jefferson Cty. v. Wash. Dep‘t of Ecology, 511 U.S. 700, 704 (1994); see
The creation of a TMDL is just one part of a multistep process, with each step “placing primary responsibility for pollution controls in state hands with ‘backstop authority’ vested in the EPA.” Am. Farm Bureau Fed‘n, 792 F.3d at 289. At the first step in the process, a state is required to identify a given waterbody‘s “designated use[],” such as recreation or wildlife preservation. See Nat. Res. Def. Council v. EPA (“NRDC I“), 301 F. Supp. 3d 133, 136–37 (D.D.C. 2018) (quoting
Next, the state must “identify those waters within its boundaries” that do not meet the established water quality standards, otherwise known as impaired waters.
The Act does not itself set a deadline for when a state is required to establish and submit a TMDL to EPA. It largely leaves that judgment up to the state, requiring only that the state submit TMDLs “from
Still, some courts have also recognized that, at some point, delay is unacceptable under the Act, and have established what is known as the “constructive submission” doctrine to identify when a delay becomes problematic. See Ohio Valley Envtl. Coal., Inc. v. Pruitt, 893 F.3d 225, 229 (4th Cir. 2018). Under that doctrine, “a prolonged failure ‘by a state to submit TMDLs will be construed as a constructive submission of no TMDLs, which in turn triggers EPA‘s nondiscretionary duty to act‘—that is, the duty to establish a federal TMDL within thirty days. Id. (quoting S.F. BayKeeper v. Whitman, 297 F.3d 877, 881 (9th Cir. 2002)). The doctrine generally “applies only where a state ‘clearly and unambiguously’ expresses a decision not to submit TMDLs.” Id. at 230 (quoting Hayes v. Whitman, 264 F.3d 1017, 1024 (10th Cir. 2001)). Courts endorsing this doctrine reason “that, without it, states could refuse to promulgate their own TMDLs and therefore easily frustrate” the Act. Id. at 229–30.
II. The Anacostia River
The Anacostia River, spanning more than 170 square miles, flows from Maryland to the District of Columbia. NRDC I, 301 F. Supp. 3d at 138. As required by the Act, Maryland and D.C. “have each established designated uses and water quality standards applicable to their portions of the Anacostia River.” Id. Both jurisdictions determined that the river was impaired by trash pollution. See id. Therefore, between 2009 and 2010, they jointly developed a TMDL to limit the amount of trash in the Anacostia River and submitted it to EPA. See id. at 138–39. In reviewing the TMDL, EPA acknowledged that “[u]nlike most TMDLs, which are expressed in positive terms of the loads of a pollutant that may be added to a waterbody,” the joint TMDL was “expressed in the negative, i.e., in terms of quantities of trash that must be captured, prevented from entering, or removed from the waterbody.” Id. at 139 (quoting Admin. R. [ECF No. 26] at 3114). EPA nonetheless approved the TMDL on September 21, 2010. Id.
NRDC filed this suit in September 2016, challenging EPA‘s approval of the TMDL under the
Rather than disapproving the existing TMDL, EPA opted to cooperate with Maryland and D.C., giving them primary responsibility for developing the replacement TMDL. See July 2, 2018 Status Report by Def. EPA [ECF No. 31] at 2. EPA has been submitting status reports to the Court every six months as to the state agencies’ progress in developing the new TMDL, with the most recent report having been filed on February 19, 2020.1 See Feb. 19, 2020 Status Report by Def. EPA [ECF No. 41] at 1.
In January 2020, NRDC filed this motion for the Court to reconsider its 2018 decision and impose a one-year deadline on EPA to establish a TMDL, contending that the TMDL-development process was proceeding too slowly and “denying legally mandated protections to the river, the communities along its banks, and those who come to enjoy it.” Pl.‘s Mot. to Set a Deadline for Final Action on Remand (“Deadline Mot.“) [ECF No. 39] at 1. Partway through briefing, NRDC served EPA with eight requests for document production and noticed a deposition of an EPA official who had filed a declaration in support of EPA‘s opposition. Nat. Res. Def. Council v. EPA (“NRDC II“), 2020 WL 2849624, at *1 (D.D.C. June 2, 2020). EPA then moved for a protective order, arguing that the discovery sought was improper. See id. at *2. The Court denied that motion and permitted NRDC to conduct very limited discovery. See id. at *1. In the course of doing so, the Court also clarified that
Discussion
I. Legal Standard
Under
“At the same time, a court‘s discretion under
II. Analysis
NRDC argues that “new information” has come to light that should make the Court reconsider its prior decision not to impose a deadline on EPA. Prior to conducting its limited discovery, NRDC could rely for support only on the “new information” of what it called the slow and “meander[ing]” pace of development. See Deadline Mot. at 1, 3–4. Following discovery, NRDC now also points to the “inaccurate and unreliable” declaration submitted by an EPA official, noting that the official‘s declaration had previously estimated that the TMDL would be completed in three to five years, but that the official‘s deposition had revealed that she now thinks five to seven years will be required. See Reply in Supp. of Pl.‘s Mot. to Set a Deadline for Final Action on Remand (“NRDC Reply“) [ECF No. 53] at 2–3, 6.
In EPA‘s view, the facts that NRDC has put forth are insufficient to establish that “a controlling or significant change in the law or facts has occurred since the [original] submission of the issue to the Court.” Def.‘s Sur-Reply Opposing Pl.‘s Mot. to Amend the J. & Impose a Deadline on Remand (“EPA’s Sur-Reply“) [ECF No. 55] at 2–3 (quoting Scahill v. District of Columbia, 286 F. Supp. 3d 12, 17–18 (D.D.C. 2017)). To the contrary, EPA asserts, “[t]he facts shown in hundreds of documents, multiple status reports, sworn declarations, and a deposition” demonstrate that the states and EPA “have been working diligently on remand and have made steadfast progress over the past two years.” Id. at 1. As a result, EPA argues that the “new information” that NRDC has presented is insufficient to satisfy
With some reluctance, the Court agrees with EPA. At summary judgment more than two years ago, the parties battled over whether the Court should set a deadline for development of a replacement TMDL. See Pl.‘s Mot. for Summ. J. [ECF No. 10] at 15; Def.‘s Cross-Mot. for Summ. J. [ECF No. 15] at 39–40. The Court‘s 2018 decision resolved that issue in favor of EPA, declining to set such a deadline. See NRDC I, 301 F. Supp. 3d at 145. That is the law of the case. And district courts should “be ‘loathe’ to reconsider issues already decided ‘in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.‘” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)).
The only concrete new fact that NRDC has put forward in support of its motion for reconsideration of the Court‘s 2018 decision is the passage of time—as of the date of this opinion, about two and a half years since the existing TMDL was vacated. The Court acknowledges and indeed shares, to some extent, NRDC‘s displeasure with the pace of development of the replacement TMDL thus far. The Court, too, would prefer that a new TMDL be
Nor are NRDC‘s attacks on the validity of the EPA official‘s declaration availing, because they largely ignore the fact that EPA is not the entity developing the replacement TMDL—Maryland and D.C. are, as contemplated under
For instance, one of NRDC‘s main criticisms is that the official‘s original estimate of three to five years, which her deposition revealed was based on “her observations of how long it has [previously] taken the [state agencies] to complete various TMDL development tasks,” has now increased to five to seven years. See NRDC Reply at 2–4. As she stated at her deposition, the official came to her new estimate after “[w]riting out the steps that would—the substeps, really, that would be needed” under the first step of the development timeline. Ex. 1, NRDC Reply [ECF No. 53-1] at 18–19. That consists primarily of developing, designing, implementing, and analyzing the results of a public survey. See id. at 20. The Court shares NRDC‘s concerns about the process that led to the apparently inaccurate estimate in the official‘s original declaration. An estimate it
Still, whatever the deficiencies in EPA‘s estimation process that led to a two-year increase between the submission of the official‘s declaration on February 28 and her deposition on June 30, the fact remains that Maryland and D.C. have the leading role in developing the replacement TMDL. As EPA points out, “the States are developing the replacement TMDLs through their respective State programs and administrative processes.” EPA Sur-Reply at 13. Thus, uncertainty on EPA‘s part as to how long the TMDL-development process will take does not constitute “a controlling or significant change in the law or facts . . . since the submission of the issue to the Court.” Singh, 383 F. Supp. 2d at 101. Indeed, the Court specifically contemplated that EPA might take a backseat to Maryland and D.C. in developing the replacement TMDL in its 2018 decision. See NRDC I, 301 F. Supp. 3d at 145. For better or worse, EPA has done just that here. That fact, then, does not justify the Court‘s changing its decision.
NRDC also cites, in passing, a few cases applying the constructive submission doctrine. But those cases don‘t help NRDC‘s cause, either. As recently stated by the Ninth Circuit, that doctrine applies “where a state has fail[ed] over a long period of time to submit a TMDL and clearly and unambiguously decided not to submit any TMDL[s].” Columbia Riverkeeper v. Wheeler, 944 F.3d 1204, 1209 (9th Cir. 2019) (internal quotation marks omitted). That is not the situation here. Maryland and D.C. previously submitted the existing (deficient) TMDL, which remains in effect today because of the Court‘s stay of vacatur. They have not failed to submit any TMDLs. See Hayes, 264 F.3d at 1022, 1024 (concluding that because Oklahoma had submitted “at least a small number” of TMDLs, the constructive submission doctrine did not apply).
Moreover, Maryland and D.C. have not “clearly and unambiguously decided” not to submit a TMDL. Even leaving aside the TMDL the states already submitted, EPA has put forth substantial documentation demonstrating that Maryland and D.C. have been reaching out to stakeholders, analyzing data, soliciting advice from authorities in other regions of the country, and working to settle on a final approach for the TMDL. See EPA‘s Sur-Reply at 5–8; see generally Ex. A, EPA‘s Sur-Reply [ECF No. 55-2] (documentation of EPA‘s and the states’ efforts). EPA therefore does not rely only, as NRDC suggests, on the EPA official‘s “declaration as proof that the Agencies are working hard.” NRDC Reply at 6. NRDC has not identified any evidence suggesting that Maryland and D.C. have decided not to submit a TMDL. Thus, far from “clearly and unambiguously express[ing] a decision not to submit [a] TMDL,” Ohio Valley Envtl. Coal., 893 F.3d at 229, Maryland and D.C. have demonstrated progress toward establishing one—even if that progress is slower (perhaps much slower) than NRDC and the Court would like. See Anacostia Riverkeeper, Inc., 713 F. Supp. 2d at 54 (“[W]here an agency justifies its conclusions with evidence, courts should not substitute their own predictions about the length of time an agency needs to evaluate data . . . , especially where those predictions turn on scientific matters.“).
For all these reasons, the Court concludes that NRDC has failed to present adequate “new information” demonstrating a “controlling or significant change in the law or facts” since the Court‘s 2018 decision,
Conclusion
For the foregoing reasons, the Court will deny NRDC‘s motion to set a deadline for final action on remand. The Court will also require EPA to submit detailed status reports every three months going forward, with the first report due not later than October 15, 2020. A separate order will be issued on this date.
Dated: September 21, 2020
/s/
JOHN D. BATES
United States District Judge