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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11972 ________________________
CAHABA RIVERKEEPER, et al.,
Petitioners,
versus
U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents. ________________________
On Petition for Review of Order of the United States Environmental Protection Agency ________________________
(September 12, 2019)
Before ED CARNES, Chief Judge, BRANCH, Circuit Judge, and GAYLES,* District Judge.
GAYLES, District Judge:
* Honorable Darrin P. Gayles, United States District Judge for the Southern District of Florida, sitting by designation. Case: 17-11972 Date Filed: 09/12/2019 Page: 2 of 26
This case places us squarely into another debate of whether United States
Environmental Protection Agency’s (the “EPA”) 1 action (or inaction) was arbitrary,
capricious, or otherwise not in accordance with law under the Administrative
Procedure Act, 5 U.S.C. § 706(2)(A). The parties dispute whether the EPA has
sufficiently supervised how Alabama protects its waterways from pollutants. The
EPA gets this supervisory authority from the Clean Water Act, 86 Stat. 816, as
amended, 33 U.S.C. §§ 1251–1388 (2018) (“CWA”), which allows it to partner
with Alabama to implement appropriate protections. The EPA can withdraw from
the partnership if it finds that there are regulatory violations with Alabama’s
program. Petitioners claim that the EPA must do that here because—and it is not
disputed that—Alabama’s administration of its program has not always complied
with federal law. The EPA disagreed, and Petitioners sued.
The primary question on appeal, therefore, is whether the EPA has discretion
not to commence withdrawal proceedings under 40 C.F.R. § 123.64(b) even if it
finds that a state’s National Pollutant Discharge Elimination System (“NPDES”)
permit program has not always complied with the requirements of the CWA.
Because no statute or regulation requires otherwise, the Court concludes that the
answer is yes.
1 The Court uses the acronym “EPA” to refer to both the U.S. Environmental Protection Agency and its Administrator.
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I. BACKGROUND
A. The Clean Water Act and Regulations
The Clean Water Act aims to eliminate the discharge of harmful pollutants
into U.S. waters. See 33 U.S.C. § 1251(a). It does so by partnering with the states
through a system of grants, projects, and standards; the creation of special
oversight offices; and permit and licensing programs, see id. §§ 1251–1346,
including the NPDES, id. § 1342. By default, the CWA authorizes the EPA to issue
NPDES permits. Id. § 1342(a)(1). But to “recognize, preserve, and protect the
primary responsibilities and rights of States” over environmental issues, id. §
1251(b), the statute sets forth a mechanism for states to assume responsibility for
issuing NPDES permits. Id. § 1342(b).
Under the CWA, a state wishing to operate its own NPDES permit program
submits a proposal that includes a program description and other documentation to
the EPA. Id. The EPA Administrator then “shall approve [the] submitted program
unless he determines that adequate authority does not exist” to, among other
requirements, “insure that the public . . . receive[s] notice of each application for a
permit” and “[t]o abate violations of the permit or the permit program, including
civil and criminal penalties . . . .” Id. § 1342(b), (b)(3), (b)(7) (emphasis added).
State permit programs must comply with the EPA regulations detailed in its state-
program requirements. See id. § 1342(c)(2); 40 C.F.R. pt. 123.
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Four statutory and regulatory requirements for state permit programs are
relevant here: (1) public notice, (2) board membership, (3) inspections of major
dischargers, and (4) the state’s enforcement authority. 2 State programs must “at all
times be in accordance with [§ 1342] and guidelines promulgated pursuant to
section 1314(i)(2) . . . .” 33 U.S.C. § 1342(c)(2). Further, the EPA must withdraw a
state’s authorization to run its own NPDES permit program if it determines, after
conducting withdrawal proceedings and giving the state a chance to take corrective
action, that the program has fallen out of compliance. See id. § 1342(c)(3). Per the
regulation, the EPA may commence withdrawal proceedings on its own “or in
response to a petition from an interested person . . . .” 40 C.F.R. § 123.64(b)(1).
The EPA must respond in writing to any such petition and “may conduct an
informal investigation of the allegations in the petition to determine whether cause
exists to commence proceedings . . . .” Id.
B. Alabama’s NPDES Permit Program
In 1979, the EPA authorized the Alabama Department of Environmental
Management (“ADEM”) to administer Alabama’s NPDES permit program. As
2 40 C.F.R. § 123.25(a)(28) (public notice); 40 C.F.R. § 124.10(c)(2), (d)(1)(vii) (public notice); 33 U.S.C. § 1314(i)(D) (board membership); 40 C.F.R. § 123.25(c)(1)(i) (board membership); 40 C.F.R. § 123.26(e)(5) (inspections of major dischargers); 40 C.F.R. § 123.27(a)(3)(i) (the state’s enforcement authority).
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required by 40 C.F.R. § 123.21(a)(4), the state and the EPA entered into a
Memorandum of Agreement, which may be updated periodically. See § 123.24(c).
Petitioners here are seven environmental groups: Cahaba Riverkeeper;
Choctawhatchee Riverkeeper, Inc.; Friends of Hurricane Creek; Black Warrior
Riverkeeper, Inc.; Sierra Club Alabama Chapter; Friends of the Locust Fork River;
and Alabama Rivers Alliance (collectively, “Petitioners”). All seven are Alabama
nonprofit, member corporations that advocate for the environmental protection of
particular waters. On January 14, 2010, Alabama Riverkeepers Alliance and 13
other environmental groups, including Petitioners, petitioned the EPA to
commence proceedings to withdraw Alabama’s authority to administer the NPDES
permit program. The groups cited 26 regulatory and statutory violations as grounds
for withdrawal. Complying with the EPA’s request, ADEM responded to the
petition on April 13, 2010, addressing each of the 26 alleged violations in turn.
On April 9, 2014, the EPA issued its interim response to the petitions,
indicating that it would not commence withdrawal proceedings based on 20 of the
26 grounds but would defer a decision on the remaining six.3
Petitioners appealed the interim response to this Court. Cahaba Riverkeeper
v. EPA, 806 F.3d 1079 (11th Cir. 2015). The Court held that its statutorily-given
3 The EPA considered the petition simultaneously with three other petitions to withdraw Alabama’s authority to administer the NPDES program.
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jurisdiction to review “any determination” by the EPA regarding a state NPDES
program was limited to final agency actions. Id. at 1084; see 33 U.S.C. §
1369(b)(1) (vesting jurisdiction in the Courts of Appeals to review the EPA’s
action “in making any determination as to a State permit program submitted under
section 1342(b) of [Title 33] . . . .”). The Court dismissed the appeal without
prejudice, noting that “[t]he organizations will . . . be able to appeal once the EPA
resolves the outstanding matters and makes a definitive decision on the relief
requested by the petitions.” Cahaba Riverkeeper, 806 F.3d at 1084.
On January 11, 2017, the EPA issued its final response to the petitions,
affirming its previous refusal to commence withdrawal proceedings against
Alabama. Petitioners now seek review of that final response. They argue that the
EPA’s refusal to commence withdrawal proceedings based on four specific
statutory and regulatory grounds was arbitrary and capricious, an abuse of
discretion, or contrary to law.
II. JURISDICTION
The Courts of Appeals have original jurisdiction to review the EPA’s action
“in making any determination as to a State [NPDES] program . . . .” 33 U.S.C.
§ 1369(b)(1); see Friends of the Everglades v. EPA, 699 F.3d 1280, 1285 (11th Cir.
2012). Before we can exercise that jurisdiction, we must ensure that the action
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before us is a “case” or “controversy” “of the justiciable sort referred to in Article
III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The justiciability analysis begins with the question of Petitioners’ standing.4
Organizations have standing to sue on behalf of their members only when the
members themselves “would otherwise have standing to sue in their own right.”
Hunt v. Wa. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). An individual
has standing to sue when “(1) [he or she] has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). But an individual can enforce a
procedural right, such as “the right to challenge agency action unlawfully
withheld,” “without meeting all the normal standards for redressability and
immediacy.” Massachusetts v. EPA, 549 U.S. 497, 517–18 (2007) (citations and
quotation marks omitted). Instead, “[w]hen a litigant is vested with a procedural
right, that litigant has standing if there is some possibility that the requested relief
will prompt the injury-causing party to reconsider the decision that allegedly
4 Amicus Curiae Manufacture Alabama, Inc., contends that this case is not justiciable because Petitioners lack standing to bring it. Manufacture Alabama argues that none of the Petitioners’ members have standing to sue and that, as a result, neither do Petitioners.
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harmed the litigant.” Id. at 518 (citation omitted); see Lujan, 504 U.S. at 573 n.8
(explaining that an individual “assuredly can” enforce procedural rights “so long as
the procedures in question are designed to protect some threatened concrete
interest of his that is the ultimate basis of his standing”); Ouachita Watch League v.
Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006) (“To show a cognizable injury in fact
in a procedural injury case, a plaintiff must allege that the agency violated certain
procedural rules, that these rules protect a plaintiff’s concrete interests and that it is
reasonably probable that the challenged action will threaten these concrete
interests.”).
To prove standing, Petitioners submitted declarations from three of their
members: (1) John Wathen of Friends of Hurricane Creek; (2) Michael William
Mullen of Choctawhatchee Riverkeeper, Inc.; and (3) Myra Ann Crawford of
Cahaba Riverkeeper. Each of these individuals serves as the “Riverkeeper” (or, in
the case of Wathen, the “Creekkeeper”) for their respective waterways, and they
have been swimming, kayaking, and fishing in those waterways for years. They
allege that the EPA’s decision not to commence withdrawal proceedings threatens
their enjoyment of their waterways. They also claim to have “witnessed the
pollution” of the waterways and “attribute much of this pollution to poor regulation
of pollution sources under the Alabama NPDES permit program . . . and poor
oversight of the Alabama NPDES permit program by EPA.” They also state that
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they would “recreate in these waters more and enjoy [their] recreational activities
more, if EPA required that Alabama’s NPDES program fully complied with the
minimum requirements of 40 C.F.R. pt. 123.”
Those statements are enough to establish injury in fact. “[E]nvironmental
plaintiffs adequately allege injury in fact when they aver they use the affected area
and are persons ‘for whom the aesthetic and recreational values of the area will be
lessened’ by the challenged activity.” Friends of the Earth, 528 U.S. at 183
(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); see also Sierra Club v.
Johnson (Johnson I), 436 F.3d 1269, 1279 (11th Cir. 2006) (concluding that the
plaintiff’s “injury in fact exists as a result of concerns about pollution, concerns
that arise because the failure to use one of the mandated public participation
procedures leaves him uncertain about whether pollution is being emitted in illegal
quantities”).
The declarations are also adequate to show that the EPA’s decision not to
commence withdrawal proceedings is a cause of the alleged injuries. “The proper
focus on causation is not harm to the environment, but harm to the plaintiffs.”
Jacobs, 463 F.3d at 1172. For instance, in Jacobs, where a coalition of
environmental groups challenged the U.S. Forest Service’s change to certain forest
plans, this Court held that the plaintiffs had standing to sue because their rights
under the National Environmental Policy Act (“NEPA”) had been violated, and
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“[s]ince the Forest Service (according to [the plaintiffs]) failed to follow NEPA, it
[was] clear that the Forest Service caused [the plaintiffs’] alleged injury.” Id. at
1173. And that, this Court said, “is the extent of [the plaintiffs’] burden to establish
causation.” Id.
So too here. Like the plaintiffs in Jacobs, Wathen, Mullen, and Crawford all
trace their injuries to the EPA’s decision not to commence withdrawal
proceedings. According to them, if the EPA had commenced withdrawal
proceedings, then Alabama’s program would have been brought into compliance
with the minimum requirements of the Clean Water Act. That, in turn, would have
given Petitioners greater enjoyment of the waterways they protect. Those
allegations are enough to show causation. See id.; see also Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007) (explaining that the
NPDES program “is designed to prevent harmful discharges into the Nation’s
waters”).
“The final piece of constitutional standing is redressability.” Jacobs, 463
F.3d at 1173. If the Court concludes that the EPA has failed to follow the
requirements of the Clean Water Act and 40 C.F.R. pt. 123, as the Petitioners
allege, then “that injury is plainly redressable[,]” id., because the APA requires that
a “reviewing court shall . . . compel agency action unlawfully withheld or
unreasonably delayed” and “hold unlawful and set aside agency action, findings,
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and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance law . . . [,]” 5 U.S.C. § 706(1), (2)(A).
In short, because Wathen, Mullen, and Crawford have established standing
to sue in their individual capacities, the organizations that are suing on their behalf
also have standing. See Hunt, 432 U.S. at 343. And “[s]o long as one party has
standing, other parties may remain in the suit without a standing injury.” Jacobs,
463 F.3d at 1170.
III. STANDARD OF REVIEW
Judicial review of an agency’s interpretation of the statute it administers is a
two-step inquiry. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 842 (1984). First, the Court must determine “whether Congress has directly
spoken to the precise question at issue.” Id. at 842. “If the intent of Congress is
clear, that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.” Id. at 842–43. If,
however, “the statute is silent or ambiguous with respect to the specific issue,” the
Court will give effect to an agency’s interpretation so long as it is a “permissible
construction of the statute.” Id. at 843.
Similarly, an agency’s interpretation of its own regulation will be upheld
unless it is “plainly erroneous or inconsistent with the regulation.” Auer v.
Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens
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Council, 490 U.S. 332, 359 (1989)) (internal quotation marks omitted); see also
Kisor v. Wilkie, — U.S. —, 139 S. Ct. 2400, 2416 (2019) (affirming that “the
agency’s reading must fall ‘within the bounds of reasonable interpretation’”)
(quoting Arlington v. FCC, 569 U.S. 290, 296 (2019)). Under this standard, the
EPA enjoys the “power to resolve ambiguities in [its] own regulations,” but must
not act contrary to regulations passed with the benefit of notice and comment.
Auer, 519 U.S. at 463. “This deferential standard applies as long as the agency
does not promulgate ‘a parroting regulation’ that does nothing more than
‘paraphrase the statutory language’ that it should be implementing.” Johnson I, 436
F.3d at 1274 (quoting Gonzales v. Oregon, 546 U.S. 243, 257 (2006)).
When applying these principles of deference, the agency’s action (or
inaction) will be upheld unless it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law . . . .” 5 U.S.C. § 706(2)(A); see Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413–14 (1971), abrogated by
Califano v. Sanders, 430 U.S. 99 (1977). Though the standard is deferential, and
the Court will not “substitute our own judgment for that of the agency,” the Court
“must consider whether an agency’s decision ‘was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.’” Johnson I,
436 F.3d at 1273–74 (quoting Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541
(11th Cir. 1996)); see also Mendoza v. Sec’y, Dep’t of Homeland Sec., 851 F.3d
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1348, 1353 (11th Cir. 2017). The Court will find an agency action to be arbitrary
and capricious only where “(1) the agency relied on factors which Congress has
not intended it to consider, (2) the agency failed to consider an important aspect of
the problem, (3) the agency explained its decision in a way that runs counter to the
evidence, or (4) the action is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Mendoza, 851 F.3d at 1353
(internal quotation marks omitted) (citations omitted).
IV. DISCUSSION
The central question in this appeal is whether the EPA acted within the
bounds of permissible discretion. The antecedent issue, therefore, is the scope of
the EPA’s discretion to commence withdrawal proceedings. The parties equally
misrepresent the other’s position. Petitioners contend that the EPA seeks unlimited
discretion; the EPA claims that Petitioners argue for no discretion.
A. Scope of EPA Discretion
The CWA’s structure emphasizes the supervisory role the EPA is to play and
the “restraint” the agency should exercise when doing so. See Save the Bay, Inc. v.
Administrator of EPA, 556 F.2d 1282, 1287 (11th Cir. 1977). Both its structure and
text make clear that states must maintain primary responsibility for environmental
issues. See 33 U.S.C. § 1251(b), (g). Revoking permit authority is a drastic
remedy, not intended for just any statutory or regulatory violation; “only the most
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egregious flouting of federal requirements in the context of an individual permit
could justify that sanction.” See Save the Bay, 556 F.2d at 1290 (expressing “some
skepticism whether a state authority’s unsatisfactory handling of a single permit
would ever warrant [the] EPA’s revocation of NPDES authority, much less judicial
reversal of a decision not to revoke”).
At the heart of this dispute over the scope of the EPA’s discretion lies the
following statutory language:
Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program. The Administrator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal.
33 U.S.C. § 1342(c)(3). Whether the EPA’s decision to commence withdrawal
proceedings is discretionary is a question of first impression in this Court. But as
the Court noted in this case’s earlier incarnation, “most courts passing on the issue
have ruled that the EPA’s decision as to whether to commence withdrawal
proceedings is a discretionary one.” Cahaba Riverkeeper, 806 F.3d at 1084 (citing
Sierra Club v. EPA, 377 F. Supp. 2d 1205, 1208–209 (N.D. Fla. 2005)).
The statutory text at issue encompasses “both a discretionary and a
nondiscretionary component.” Cf. Sierra Club v. Johnson (Johnson II), 541 F.3d
1257, 1265 (11th Cir. 2008) (noting that the provision at issue in the Clean Air Act
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“contain[ed] both a discretionary and nondiscretionary component”). “Congress’s
use of the word ‘shall’ creates a nondiscretionary duty for the Administrator; it
plainly mandates” the withdrawal of state permit authority under particular
conditions. Id. “At the same time, it is undeniable [§ 1342(c)] also contains a
discretionary component: it requires the Administrator to make a judgment of
whether a petition demonstrates a [state program] does not comply with clean
[water] requirements.” Id. at 1266. In this case, as in Johnson II, when faced with a
petition to commence withdrawal proceedings, the EPA must decide whether
petitioners have made a sufficient showing to warrant withdrawal proceedings. See
id.; see also N.Y. Pub. Interest Research Grp. v. Whitman, 321 F.3d 316, 333 n.11
(2d Cir. 2003) (“There clearly is some room for the exercise of agency expertise in
[the statutory text], which requires petitioner to make a demonstration to the EPA,
but none of the questions that could arise under the exercise of the EPA’s
judgment—such as, perhaps, questions of the burdens facing a petitioner—have
arisen in this case.”).
As one district court in this Circuit has explained, “neither the [CWA] nor
the regulations impose any prescribed method by which, or specific time within
which, the EPA must evaluate a complaint or evidence of a state’s noncompliance
and make a determination.” Sierra Club, 377 F. Supp. 2d at 1208. This leaves
courts to evaluate simply whether the EPA has made a “reasonable inquiry . . .
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within a reasonable time . . . [and] these are standards that ring of discretion.” Id.;
see also id. at 1208–09 (comparing cases determining whether commencement of
withdrawal proceedings is discretionary).
While the EPA’s decision whether to commence withdrawal proceedings is
discretionary, the agency’s discretion is not boundless as it must faithfully enforce
the CWA and its implementing regulations. See 33 U.S.C. § 1342(c). And the
regulations enumerate the conditions under which withdrawal is appropriate. Even
so, the regulations indicate that the decision to withdraw a state’s NPDES authority
is ultimately a discretionary one: “The Administrator may withdraw program
approval when a State program no longer complies with the requirements of [the
implementing regulations], and the State fails to take corrective action.” 40 C.F.R.
§ 123.63(a) (emphasis added). In other words, the Administrator may withdraw
authority under certain conditions but is not compelled to do so. The EPA’s
interpretation of the regulation is consistent with the statute.
Petitioners argue that the EPA’s decision to commence withdrawal
proceedings (or not) must be based solely on the agency’s determination of
whether “cause” exists to commence proceedings. As support, Petitioners point to a
different regulatory provision, which states:
The Administrator may order the commencement of withdrawal proceedings on his or her own initiative or in response to a petition from an interested person alleging failure of the State to comply with the requirements of this part as set forth in § 123.63 . . . . He may conduct
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an informal investigation of the allegations in the petition to determine whether cause exists to commence proceedings under this paragraph . . . .
40 C.F.R. § 123.64(b)(1).
Petitioners argue that “cause . . . to commence proceedings” means cause “to
find that the State program is not being administered in accordance with the
minimum requirements of 33 U.S.C. § 1342 and 40 C.F.R. pt. 123.” According to
Petitioners, if the EPA determines that a program is not in compliance, then
“cause” exists to commence withdrawal proceedings. And that cause
determination, they assert, is tied to the first sentence in § 123.64(b)(1): “The
Administrator may order the commencement of withdrawal proceedings on his or
her own initiative or in response to a petition from an interested person alleging
failure of the State to comply with the requirements of this part.” (emphasis
added).
Petitioners argue that the use of the word “may” does not give the EPA
unbridled discretion, but instead means only that the EPA has a choice to grant or
deny the petition. But according to Petitioners, it is not much of a choice. They
insist that because the EPA “must conform to the requirements of C.F.R. 40
§ 123.64(b)(1),” everything turns on the EPA’s decision about whether the program
is in compliance. If the EPA decides compliance is lacking, Petitioners say, then
“cause” exists to commence withdrawal proceedings.
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This Court is not persuaded. The regulation does not define what
“cause . . . to commence proceedings” means, and it certainly does not define it the
way Petitioners have. The Court will defer to the EPA’s contrary interpretation “so
long as the interpretation sensibly conforms to the purpose and wording of the
regulations.” Johnson I, 436 F.3d at 1274 (quoting Legal Envtl. Assistance Found.,
Inc. v. EPA, 276 F.3d 1253, 1262 (11th Cir. 2001)). That is the case here.
Moreover, the EPA has long rejected the idea that “program withdrawal should be
mandatory for any violation by a State” because “[s]uch a requirement would be
draconian.” 45 Fed. Reg. 33,384 (1980); see Barnhart v. Walton, 535 U.S. 212, 220
(2002) (“[T]his Court will normally accord particular deference to an agency
interpretation of ‘longstanding’ duration.”) (quoting North Haven Bd. of Ed. v.
Bell, 456 U.S. 512, 522 n.12 (1982)).
This Court need not pinpoint the precise conditions under which the EPA
should exercise its discretion to initiate withdrawal proceedings. It is enough to
observe that the EPA is not required by statute or regulation to commence
withdrawal proceedings over any single violation. See 33 U.S.C. § 1342(c)(3); 40
C.F.R. § 123.63(a). Petitioners concede this point. The regulations further reinforce
broad agency discretion over the decision to withdraw authority. See 40 C.F.R. §
123.63(a) (listing circumstances for which the Administrator may withdraw
program approval). The EPA, however, may not absolve states of their obligations
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under the CWA. See Johnson I, 436 F.3d at 1280 (“EPA is not a board of pardons.
Its duty is to enforce requirements, not to grant absolution to state agencies that
have violated them.”).
So, all that remains here is whether the EPA reasonably exercised its
discretion to refuse to commence withdrawal proceedings. Petitioners point to four
violations of the EPA’s regulations (and one corresponding violation of the CWA)
that Petitioners say justified such action. But when considering each argument
under the deference framework enumerated above, this Court cannot agree. 5
U.S.C. § 706(1), (2)(A) (courts shall “hold unlawful” agency actions “found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law”); see also Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000) (noting
that Auer deference applies to an agency’s interpretation of a regulation “when the
language of the regulation is ambiguous”).
B. Discharge Notices
Before issuing an NPDES permit, the state permit authority must publish “a
notice in a daily or weekly newspaper within the area affected by the facility or
activity . . . .” 40 C.F.R. § 124.10(c)(2)(i). The notice must include, among other
information, “a general description of the location of each existing or proposed
discharge point and the name of the receiving water . . . .” Id. § 124.10(d)(vii).
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Petitioners argue that Alabama’s notices are insufficient because, while the
notices identify the receiving water, they do not give a general description of the
location of existing or proposed discharge points. Instead, Alabama’s published
notices refer readers to a freely accessible government website that gives greater
information about the proposed discharge points and permit. Petitioners argue that
this notice system runs contrary to the regulatory requirements. But the EPA
disagrees; it concluded that withdrawal proceedings were unnecessary because
Alabama’s notice procedures, in the EPA’s view, “achieves the goals of the
regulatory requirement . . . .” In effect, the EPA determined that ADEM
substantially complied with federal regulations.
Petitioners argue that Alabama’s procedure is not only contrary to the plain
regulatory language, but does not actually achieve the regulatory goal, because
one-third of Alabama households lack high-speed internet access. While the EPA
does not dispute this, it notes that not all Alabamians have newspaper access either.
The EPA agrees that, per its regulations, public notices must contain a
general description of the location of discharge points. The agency nevertheless
determined that Alabama’s public-notice procedure did not merit withdrawal
proceedings, deciding instead that the more appropriate regulatory oversight action
was to “encourage ADEM to supplement its public notices with more specific
information.” As explained above, the decision whether to commence withdrawal
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proceedings is one the CWA and regulations give to the EPA. So even if Alabama’s
imperfect notice procedure does not fully comply with the CWA, the EPA’s
decision not to commence withdrawal proceedings was not “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. §
706(2)(A).
C. Board Conflicts
The CWA charges the EPA with promulgating a regulatory “requirement that
no board or body which approves permit applications or portions thereof shall
include, as a member, any person who receives, or has during the previous two
years received, a significant portion of his income directly or indirectly from
permit holders or applicants for a permit[].” 33 U.S.C. § 1314(i)(D). But the CWA
does not define "board or body," leaving open the question of whether any conflict
prohibits membership or whether recusal in specific instances satisfies the
requirement. See Chevron, 467 U.S. at 843 (holding that deference to an agency's
interpretation applies where a statute is ambiguous). To clarify that ambiguity, the
EPA regulation elaborates on the requirement to include “any individual, including
the Director, who has or shares authority to approve all or portions of permits
either in the first instance, as modified or reissued, or on appeal.” 40 C.F.R. §
123.25(c)(1)(i).
21 Case: 17-11972 Date Filed: 09/12/2019 Page: 22 of 26
The board members of Alabama’s NPDES permit program must annually
complete a NPDES Conflict of Interest Disclosure Form, disclosing any income
received from permit holders or applicants. “Conflicted members” must then
complete and file a General Recusal Form, recusing themselves from voting on
“any NPDES or Water Pollution Control related matters.” The Alabama
Environmental Management Commission indicates which matters require recusal
during meetings, and those members who are conflicted do not participate in
deciding those matters. Additionally, Alabama requires the Chair of the
Commission, if conflicted, to defer to the Vice Chair on NPDES matters.
The EPA’s regulatory definition of “board or body” clearly allows for the
recusal policy that Alabama has implemented: recused members do not “share[]
authority to approve all or portions of permits either in the first instance, as
modified or reissued, or on appeal.” 40 C.F.R. § 123.25(c)(1)(i). And the regulation
does not simply parrot statutory text, but rather responds to a genuine ambiguity in
the text about whether “a board or body” consists of only those members who
decide NPDES matters or all members of a “board or body,” some of who decide
NPDES matters. See Johnson I, 436 F.3d at 1274. Because the EPA’s application of
its regulatory definition to Alabama’s recusal policy is reasonable and the
regulation responds to a genuine statutory ambiguity rather than parroting statutory
text, the EPA’s decision not to initiate withdrawal proceedings on this ground was a
22 Case: 17-11972 Date Filed: 09/12/2019 Page: 23 of 26
reasonable one. 5 Auer, 519 U.S. at 461. And accordingly, it was also not “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5
U.S.C. § 706(2)(A).
D. Annual Inspections
The EPA regulation here requires that “State NPDES compliance evaluation
programs shall have procedures and ability for . . . [i]nspecting the facilities of all
major dischargers at least annually.” 40 C.F.R. § 123.26(e)(5). To free resources for
other environmental issues, the EPA’s 2007 National Compliance Monitoring
Strategy set a goal of inspecting major dischargers biennially.
According to the plain language of the regulation, state programs must have
“procedures and ability” for annual inspections, not that annual inspections occur.
Recognizing as much, Petitioners argue that because the resources for annual
inspections are diverted to other tasks, Alabama no longer has the “procedures and
ability” for annual inspections. The record does not show, however, that Alabama
is unwilling or incapable of conducting annual inspections. Nor is there an
indication that annual inspections are required. Presumably, if the EPA reinstated
annual inspections as a policy goal, then the state would, or could, simply divert
resources back to inspections. Thus, the agency’s determination that this ground
5 The Court notes that there is no evidence in the record that Alabama’s NPDES permit program board members voted on conflicted matters.
23 Case: 17-11972 Date Filed: 09/12/2019 Page: 24 of 26
does not warrant commencing withdrawal proceedings was not “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5
E. Lawsuit Limitations
Finally, Petitioners argue that Alabama’s program fails to comply with the
regulation requiring that the state be able to
assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, . . . for the violation of any NPDES permit condition; any NPDES filing requirement, any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director.
40 C.F.R. § 123.27(a)(3)(i). Alabama can “assess or sue” in this manner, except as
it relates to its state agencies, which have not waived—and under the Alabama
Constitution may not waive—sovereign immunity in the courts. See id. §
123.27(a); Ala. Const. 1901, art. I, § 14.
The EPA acknowledges that sovereign immunity prevents ADEM from
suing its state agencies or entities. Nonetheless, the EPA argues that neither the
statute nor regulation requires the waiver of sovereign immunity. Petitioners, on
the other hand, argue that per the regulation’s plain language, the state must be able
to sue to recover penalties for any violation.
The EPA maintains that state agency violations can be abated through citizen
and federal enforcement and that Alabama’s sovereign immunity is not reason
24 Case: 17-11972 Date Filed: 09/12/2019 Page: 25 of 26
enough to commence withdrawal proceedings. The EPA further notes that
Petitioners’ preferred reading of the statute would raise a “serious constitutional
question” because it would force states to sacrifice their immunity. Petitioners, in
turn, contend that because the agency did not specifically rely on this basis to deny
commencing withdrawal proceedings, it is an inappropriate ground on which to
affirm the agency’s determination.
It is not clear that the EPA can force states to sacrifice sovereign immunity
without a clear statement from Congress to that effect. Nevertheless, when
possible, the Court should avoid a serious constitutional question. See Clark v.
Martinez, 543 U.S. 371, 380–81 (2005) (“[A] court must consider the necessary
consequences of its choice. If one of them would raise a multitude of constitutional
problems, the other should prevail—whether or not those constitutional problems
pertain to the particular litigant . . . .”). As Congress has not explicitly required
states to waive sovereign immunity in exchange for operating NDPES permit
programs, and as the regulations are silent as to sovereign immunity, the Court
concludes that the agency’s interpretation is a reasonable one. Auer, 519 U.S. at
461. And, as with the other grounds, the agency’s interpretation of this regulation
was not “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law . . . .” 5 U.S.C. § 706(2)(A).
25 Case: 17-11972 Date Filed: 09/12/2019 Page: 26 of 26
***
The EPA’s discretion is not unlimited, but neither is it as constrained as
Petitioners would suggest. The agency must faithfully administer the CWA and its
implementing regulations, but its decision to commence withdrawal proceedings is
largely a discretionary one. For the four alleged violations, the Court finds that the
EPA reasonably construed the statutory and regulatory text. The Court also finds
that the EPA’s decision not to commence withdrawal proceedings in the face of
these alleged violations was not arbitrary, capricious, or an abuse of discretion, or
otherwise not in accordance with the law.
AFFIRMED.