Summary of a Recent
Judicial
Development in
Environmental Law
Judicial Review of EPA's Authority over TMDLs Is
Outside Court's Original Jurisdiction
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Friends of Earth v. United States Environmental Protection Agency, 333 F.3d 184 (D.C. Cir. 2003), the United States Court of Appeals for the District of Columbia dismissed plaintiff Friends of the Earth's petitions and transferred the case to the district court. The plaintiff sought review of the EPA's decision to issue total daily maximum loads (TMDLs) for certain pollutants discharged into the Anacostia River because it alleged that the TMDLs violated the Clean Water Act (CWA). The EPA successfully argued that the court lacked subject matter jurisdiction.
Background
The CWA requires any entity designated as a point source of pollution to meet certain technology-based effluent limitations. Id. at 185-86. Through the effluent limitation approach, the CWA regulates point sources by requiring permits and the use of technology-based abatement methods. Id. at 186. In addition, the CWA also regulates point sources through a water quality based program, which requires that either states adopt water quality standards sufficient to comply with the objectives of the CWA, or the EPA promulgates water quality standards for the state. Id. When effluent limitations are not stringent enough to meet water quality standards, the CWA requires the state to prioritize water bodies "taking into account the severity of the pollution and the uses to be made of such waters," and establish TMDLs for criteria pollutants. Id. A TMDL "represents the maximum amount of pollutant loadings that a water body may take in without violating applicable water quality standards, taking into account both seasonal variations and a margin of safety." Id. Each state must submit its priority list to the EPA for approval. Id.
Because it was so polluted, the Anacostia River violated the water quality standards set by the District of Columbia and approved by the EPA, and it became the subject of TMDL development. Id. at 186-87. In late 2001 and early 2002, the EPA approved the TMDLs submitted by the district addressing both the dissolved oxygen and turbidity standards. Id. at 187. Following the EPA's approval, the plaintiff petitioned the instant court to review the TMDLs, claiming they were inadequate to achieve the district's water quality standards. Id.
Arguments
The EPA argued that the plaintiff's petitions should be dismissed because the instant court lacked subject matter jurisdiction, under 33 U.S.C. § 1369(b)(1), to review the approval or establishment of TMDLs made pursuant to § 1313(d). Id. at 187. It maintained that the only venue appropriate for judicial review of TMDLs was in district court, pursuant to the Administrative Procedures Act (APA). Id.
The plaintiff argued that the plain terms of the CWA, as well as precedent from both the Supreme Court and D.C. Circuit, compelled "the conclusion that TMDLs [were] effluent limitations or other limitations under § 1311, 33 U.S.C. § 1369(b)(1)(E), and that, as a result, direct review of EPA's actions" came within the instant court's jurisdiction. Id.
Analysis and Holdings
After reviewing § 1369(b)(1)(E) of the CWA, which provides for direct review in the court of appeals of EPA action in approving or promulgating any effluent limitation or other limitation under §§ 1311, 1312, 136, and 1345 of the CWA, the court noted the absence of § 1313, which created EPA's authority to approve and establish TMDLs. Id. at 188. Because Congress was so specific in crafting the instant court's original jurisdiction pursuant to the CWA, the court stated that the plaintiff's burden in establishing jurisdiction in this case was great. Id. Ultimately, because Congress was so specific in specifying the extent of the instant court's original jurisdiction, the plaintiff's interpretation of the statute rendered parts of the CWA superfluous, and other circuits had already addressed the issue in relative concert, the court dismissed the plaintiff's petitions for lack of jurisdiction and transferred the case to district court. Id. at 193.
The case was decided on June 20, 2003.