Idaho Conservation League v. Usepa

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 10, 2020
• Docket: 18-72684
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IDAHO CONSERVATION LEAGUE, No. 18-72684

Petitioner,

MEMORANDUM* v.

U.S. ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER, in his official capacity as Administrator of the U.S. Environmental Protection Agency,

Respondents,

STATE OF IDAHO; et al.,

Intervenors,

On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted March 5, 2020 Portland, Oregon

Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. Idaho Conservation League (“ICL”) petitions for review of the United States

Environmental Protection Agency’s (“EPA”) approval of the Idaho Pollution

Discharge Elimination System (“IPDES”). The parties are familiar with the facts,

so we do not repeat them here. We have jurisdiction under 33 U.S.C.

§ 1369(b)(1)(D), and we grant the petition in part, deny it in part, and remand

without vacatur in part.

ICL has associational standing to bring this challenge. See Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000); Nat.

Res. Def. Council v. EPA, 542 F.3d 1235, 1248 (9th Cir. 2008).

EPA’s conclusion that a two-year statute of limitations for bringing an

enforcement action provided “adequate authority” to “abate violations of the

permit or the permit program,” 33 U.S.C. § 1342(b)(7), was not arbitrary and

capricious. Nor did EPA err by concluding that the Idaho Department of

Environmental Quality will have sole responsibility for administering the IPDES

program, including the permits for concentrated animal feeding operations

(“CAFO”). Therefore, we deny the petition with respect to ICL’s challenges

concerning the statute of limitations and the Idaho State Department of

Agriculture’s alleged role in administering CAFO permits.

However, EPA abused its discretion in approving a mens rea standard

“greater than the burden of proof or degree of knowledge or intent EPA must

2 provide when it brings an action . . . .” 40 C.F.R. § 123.27(b)(2). Because

§ 123.27(b)(2) is neither ambiguous nor inconsistent with 40 C.F.R.

§ 123.27(a)(3)(ii), Auer deference is not warranted for EPA’s interpretation of its

own regulation. See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). Regardless of

the broad range of state law mens rea standards—spanning the lowest standard of

“strict liability” to the highest standard of “criminal negligence”—that could

satisfy § 123.27(a)(3)(ii), § 123.27(b)(2) provides a standalone requirement that

was not satisfied here.

We have held that EPA may bring an enforcement action for “negligent”

violation, see 33 U.S.C. § 1319(c)(1), under the ordinary negligence standard. See

United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999). Thus, while a

state program need not mirror the burden of proof and degree of knowledge or

intent EPA must meet to bring an enforcement action, see Consolidated Permit

Regulations, 45 Fed. Reg. 33,290, 33,382 (May 19, 1980), under § 123.27(b)(2), a

state plan must employ a standard “no greater than” simple negligence, such as

strict liability or simple negligence. Because EPA approved the IDPES even

though it used a standard greater than simple negligence, “gross negligence,” we

grant the petition with respect to invocation of the improper mens rea standard.

We remand without vacatur for EPA to promptly address the IPDES’s

deficiency with respect to the mens rea standard, even though remand without

3 vacatur is appropriate only in “limited circumstances.” Cal. Cmtys. Against Toxics

v. EPA, 688 F.3d 989, 994 (9th Cir. 2012). Congress envisioned state and federal

partnerships in achieving the goals of the CWA. See 33 U.S.C. § 1251(b);

Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992). We note that on remand, Idaho,

one of the last states to create a state permit program, has the option to enter into

that partnership in accordance with the CWA.

PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED WITHOUT VACATUR IN PART.

Each party shall pay its own costs on appeal.