Summary of a Recent
Judicial
Development in
Environmental Law
Promulgation of TMDLs Must Comply with Formal Rulemaking Procedures
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Asarco, Inc. v. State, 69 P.3d 139 (Idaho 2003), the Supreme Court of Idaho affirmed the district court's holding, which entered judgment in favor of several mining companies. Seeking judicial review and a declaratory judgment, the mining companies alleged that the Idaho Department of Environmental Quality (IDEQ), in developing a total maximum daily load (TMDL) for the Coeur d'Alene River Basin (Basin), failed to comply with the formal rulemaking requirements of the Idaho Administrative Procedures Act (IAPA). The instant court held that TMDLs were rules, and therefore had to be developed according to IAPA formal rulemaking requirements.
Background
The IDEQ and the Environmental Protection Agency (EPA) worked together to establish a TMDL for the Coeur d'Alene River Basin; however, both regulatory bodies acknowledged that the IDEQ did not follow the Administrative Procedures Act's (APA) formal rulemaking procedures in promulgating the rule. Id. at 141. Despite the admission, upon completion of the TMDL, the EPA considered it to be binding and enforced it through the National Pollutant Discharge Elimination System (NPDES) process. Id. at 141-42. On September 8, 2000, three mining companies filed suit challenging the TMDL's validity. Id. at 142. In response, the IDEQ motioned to dismiss the suit, arguing that the court lacked subject matter jurisdiction because the mining companies failed to exhaust their administrative remedies. Id. The district court judge ruled in favor of mining companies, and the IDEQ appealed. Id.
Arguments
The IDEQ argued that the trial court erred in determining that the TMDL was a rule because the TMDL did not implement or interpret existing law in the manner of a rule, and because the IDEQ exercised its discretion and purposefully chose not to engage in rulemaking rendering the TMDL unenforceable. Id. at 142-43. Additionally, the IDEQ argued that mining companies were required to exhaust their administrative remedies prior to seeking declaratory judgment in district court. Id. at 142.
Analysis and Holdings
Shaping its rationale, the court stated, contrary to the IDEQ's arguments, "an agency action is not a rule because it was promulgated according to rulemaking authority . . . ," but because it is promulgated according to statutory rulemaking directives. Id. at 143. Continuing, the court stated that "even if [the IDEQ] ha[d] the discretion under the Clean Water Act to determine whether or not the TMDL [would] have the force and effect of law in Idaho, under Idaho administrative law, the TMDL [was] still a rule and must be promulgated in accordance with the IAPA in order to be valid." Id. To determine whether a particular agency action must follow formal rulemaking procedures, the court considered the following characteristics indicative of a rule: (1) wide coverage, (2) application generally and uniformly, (3) operation only in future cases, (4) prescription of a legal standard or directive not otherwise provided by the enabling statute, (5) expression of agency policy not previously expressed, and (6) interpretation of law or general policy. Id. In applying these characteristics, the instant court found that the Basin TMDL: (1) had wide coverage; (2) applied generally and uniformly; (3) operated only in future cases; (4) prescribed a legal standard not provided by the enabling statute; (5) expressed new agency policy; and (6) implemented and interpreted existing law. Id. at 143-45. Therefore, the court held that the "district court correctly determined the establishment of the TMDL involved rulemaking." Id. at 145.
Following its rulemaking discussion, the court considered whether the mining companies were required to exhaust their administrative remedies prior to seeking judicial review in district court. Id. During its consideration, the court stated the following exception to the traditional exhaustion requirement:
[The] validity or applicability of a rule may be determined in an action for declaratory judgment in the district court, if it is alleged that the rule, or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights of the petitioner . . . . [A] declaratory judgment may be rendered whether or not the petitioner has requested the agency to pass upon the validity or applicability of the rule in question.
Id.
Because the mining companies sought a declaratory judgment from the state district court regarding the validity of the TMDL as a rule and at least two of the mining companies' NPDES permits were modified by the EPA as a result of the TMDL, which caused the mining companies to decrease their effluent limitations at a cost, the instant court held that the district court correctly concluded that the mining companies were permitted to seek judicial review prior to exhausting their administrative remedies. Id.
The case was decided on April 25, 2003.