Summary of a Recent
Judicial Development in
Clean Water Act

Clean Water Act Citizen Suit Involving CAFO
Dismissed for Lack of Jurisdiction

Harrison M. Pittman
Research Assistant Professor of Law

Summary of Decision

In Johnson County Citizen Committee For Clean Air and Water v. EPA, No. 3:05-0222, 2005 WL 2204953 (M.D. Tenn. Sept. 9, 2005) (unreported decision), the United States District Court for the Middle District of Tennessee dismissed for lack of subject matter jurisdiction an action that sought to compel the Environmental Protection Agency (EPA) to take certain actions regarding alleged violations of the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, on the part of a concentrated animal feeding operation.

Background

Congress enacted the CWA “to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’” Johnson County, 2005 WL 2204953, at *1 (quoting 33 U.S.C. § 1251(a)). To help achieve this objective, the CWA prohibits the discharge of pollution from “point sources” unless that point source has received a National Pollution Discharge Elimination System (NPDES) permit. See id. A NPDES permit may be issued by the EPA or the state in which the point source is located so long as the state is authorized by the EPA to issue the permit. See id. (citing 33 U.S.C. § 1342(b)).

A NPDES permit issued by a state must comply with federal standards. See id. (citing 33 U.S.C. § 1342(c)(3)). “If the EPA determines that a state is not administering the program in compliance with federal standards, the EPA must provide an opportunity to cure, and, if the deficiency continues, the EPA must withdraw the state’s authorization.” Id (citing 33 U.S.C. § 1342(c)(3)). In addition, the CWA “authorizes private suits by citizens against the EPA . . . ‘where there is alleged a failure of the [EPA] Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.’” Id at *3 (quoting 33 U.S.C. § 1365(a)(2)).

Plaintiff Johnson County Citizen Committee for Clean Air and Water, a local chapter of the Environmental Defense League, opposed the development of a concentrated animal feeding operation in Johnson County, Tennessee. See id. at *2. In 2004, the plaintiff petitioned the EPA to hold a public hearing regarding Tennessee’s implementation of the NPDES program through which the operation at issue had received its permit. See id. The plaintiff also sought to have the EPA withdraw Tennessee’s authority to carry out its NPDES program. See id. The EPA did not act upon the plaintiff’s petition. See id. The plaintiff subsequently brought a legal action that sought to compel the EPA to take certain actions regarding Tennessee’s implementation of its NPDES program as it related to the concentrated animal feeding operation at issue. See id.

Arguments

The plaintiff forwarded two main arguments. First, the plaintiff argued that “the EPA has a non-discretionary or mandatory duty under the CWA to hold a public hearing concerning Tennessee’s alleged noncompliance with the CWA and a subsequent duty to withdraw federal approval of Tennessee’s NPDES permit program.” Id Second, the plaintiff argued that the EPA “failed to timely respond” to the petition it filed in 2004, an argument the court characterized as an “unreasonable delay” claim under § 706(1) of the Administrative Procedures Act (APA), 5 U.S.C. §§ 500-504, 551-584, 701-706, 801-808. See id.

The EPA argued that the court lacked jurisdiction to consider either of the plaintiff’s arguments. The EPA contended that the plaintiff’s first claim should be dismissed for lack of subject matter jurisdiction because the court “cannot compel the EPA to perform purely discretionary duties, and the EPA has no mandatory duty to hold a hearing or to withdraw Tennessee’s NPDES program.” Id It argued that the plaintiff’s second argument should be dismissed because the Court of Appeals has exclusive jurisdiction over the APA “unreasonable delay” claim. See id.

Analysis and Holdings

The court first considered the plaintiff’s argument that the EPA should be compelled to hold a hearing or withdraw Tennessee’s NPDES program. The plaintiff asserted that once the EPA is aware of CWA violations, it has “a mandatory duty to (1) hold a public hearing for purposes of determining whether the state NPDES program is in compliance with the CWA and (2) commence withdrawal proceedings if the EPA makes the determination that the Tennessee NPDES program is out of compliance.” Id

The court explained that the majority of the courts considering this issue have held that “under the plain terms of the CWA, and considering the legislative history . . . , the decisions of whether to hold a public hearing and whether to make a subsequent determination that a state is not administering its NPDES program in accordance with the CWA are wholly discretionary exercises of the EPA’s authority.” Id It added the following:

Although the CWA mandates that the EPA Administrator “shall” withdraw approval of a state’s NPDES program under certain circumstances, the mandatory duty to withdraw approval arises only after the Administrator has determined that a state is not administering its NPDES program in compliance with federal standards. The plain language of CWA . . . does not compel the EPA . . . to make such a determination by any particular time, or at all.

Id

The court noted that the plaintiff petitioned the EPA in November of 2004 and that the EPA did not make a determination regarding whether Tennessee was out of compliance with the CWA NPDES standards. See id. at *5. The court explained that “[w]ithout making such a determination, the EPA has no non-discretionary or mandatory duty to perform. A citizen’s suit to enforce such discretionary duties is not available. Therefore, Plaintiff’s claim . . . must be dismissed for lack of subject matter jurisdiction.” Id

The court then turned to the plaintiff’s APA “unreasonable delay” claim. See id. at *6. The court held that it lacked jurisdiction to consider the claim “because the substantive action Plaintiff[. . .] seek[s] to compel . . . is subject to review in the Court of Appeals.” Id (citations omitted). It added that “where a statute commits review of final agency action to the Court of Appeals, any suit seeking relief that might affect the appellate court’s future jurisdiction is also subject to exclusive appellate court review.” Id (citations omitted).

The case was decided on September 9, 2005; this summary was posted Mar. 31, 2006.