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TMDL Program and Biological Impairment Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 1 of 235 No. 17-1430 In the United States Court of Appeals for the Fourth Circuit Scott Pruitt, Administrator, United States Environmental Protection Agency, and Cecil Rodrigues, Acting Regional Administrator, United States Environmental Protection Agency, Region III, Defendants-Appellants, v. Ohio Valley Environmental Coalition, Inc.; Sierra Club; West Virginia Highlands Conservancy, Inc.; and West Virginia Rivers Coalition, Plaintiffs- Appellees. On appeal from the United States District Court for the Southern District of West Virginia, Case No. 3:15-cv-00271 (Chambers, J.) Federal Defendants-Appellants’ Motion for Stay Pending Appeal JEFFREY H. WOOD Acting Assistant Attorney General DAVID J. KAPLAN JAMES A. MAYSONETT Attorneys, U.S. Dep’t of Justice Environment & Nat. Res. Division Of Counsel: P.O. Box 7415 JIM CURTIN Washington, D.C. 20044 STEFANIA SHAMET 202-305-0216 U.S. Environmental Protection Agency [email protected] Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 2 of 235 Table of Contents Introduction .................................................................................................. 1 Background ................................................................................................... 2 A. The Clean Water Act and “constructive submission.” ...................... 2 B. West Virginia’s TMDL program and biological impairment. ............ 4 C. The district court’s decision. ............................................................ 5 D. Motion to stay ................................................................................ 6 Standard of Review ....................................................................................... 6 Argument ...................................................................................................... 7 I. The United States is likely to succeed on the merits of this appeal. ....... 7 A. The district court misapplied the “constructive submission” doctrine. ....................................................................................................... 8 1. The district court erred because West Virginia has a robust TMDL program and a plan to complete the subject TMDLs. ................... 8 2. The district court erred because West Virginia is working on ionic toxicity TMDLs. ....................................................................... 11 3. The district court also erred because West Virginia is working on other TMDLs that address biological impairment. ..................... 14 B. The district court wrongly held that OVEC had standing to sue regarding waters throughout West Virginia. ................................... 16 II. EPA is likely to suffer irreparable harm unless this order is stayed. ..... 18 III. A stay will serve the public interest. ................................................... 22 Conclusion .................................................................................................. 22 i Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 3 of 235 Table of Authorities Cases Alaska Ctr. for the Environment, 762 F. Supp. 1422 (W.D. Wa. 1991) ................ 13 Alaska Ctr., 20 F.3d 981 (9th Cir. 1994) .................................................... 10, 17 American Canoe Ass’n v. EPA, 30 F. Supp. 2d 908 (E.D. Va. 1998) ................... 13 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ......................................... 17 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ........ 17 Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001) .................................. 4, 8, 10 Kingman Park Civic Ass’n v. EPA, 84 F. Supp. 2d 1 (D.D.C. 1999) .................... 13 Lewis v. Casey, 518 U.S. 343 (1996) ........................................................... 16, 17 Long v. Robinson, 432 F.2d 977 (4th Cir. 1970) ............................................... 22 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......................................... 16 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ............................................ 16 NRDC v. FDA, 884 F. Supp. 2d 108 (S.D.N.Y. 2012) ...................................... 21 Philip Morris USA Inc. v. Scott, 131 S. Ct. 1 (2010) .......................................... 21 San Francisco Baykeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002) ...... 4, 8, 10, 11 Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) ..............................3, 4, 9 Sierra Club v. Browner, 843 F. Supp. 1304 (D. Minn. 1993) ............................. 17 Sierra Club v. Morton, 405 U.S. 727 (1972) ..................................................... 16 Summers v. Earth Island Inst., 555 U.S. 488 (2009) .......................................... 17 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................. 6 ii Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 4 of 235 Wis. Gas Co. v. FERC, 758 F.2d 669 (1985) .................................................... 20 Statutes 33 U.S.C. § 1251(b) ........................................................................................ 2 33 U.S.C. § 1313(d)(1)(C) ............................................................................... 2 33 U.S.C. § 1313(d)(2) .................................................................................... 3 33 U.S.C. §§ 1313(d)(1)(A), (C) .................................................................... 10 Id. § 1313(a), (b) & (c)(1) ............................................................................... 2 Id. § 1313(d)(1)(A) & (B) ................................................................................ 2 Id. §§ 1313(d)(1)(c), (d)(2) .......................................................................... 3, 8 Regulations 40 C.F.R. §§ 130.2(j) & 130.7(b)(1) ................................................................. 2 40 C.F.R. §§ 130.7, 130.7(c)(1), 130.2(g)–(i). ................................................... 3 iii Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 5 of 235 Introduction The United States moves this Court to stay the district court’s February 14, 2017 order pending appeal. Opinion and Order (Feb. 14, 2017) (Attachment 1). Without a stay, that order, and further obligations that it will trigger under the Clean Water Act (“CWA,” the “Act”), could require EPA to establish “total maximum daily loads” (“TMDLs”) for up to 573 different bodies of water in West Virginia. That is a job that EPA was never meant to do because the Act entrusts this responsibility to the State of West Virginia, not EPA. None of this is necessary or justified. The district court misapplied the judge-made theory of “constructive submission” to put this burden on EPA. The other courts that have adopted this theory have applied it cautiously, recognizing that it is not found in the Act. The theory has never before been applied to anything less than a complete and total failure of a State to implement the TMDL provisions of the Act. And it has never before been applied to a TMDL program like West Virginia’s, which has developed and submitted over 4,000 TMDLs to EPA since 2004. We respectfully submit that this case was wrongly decided. The district court’s order will cause irreparable harm. If EPA is forced to take over this aspect of West Virginia’s TMDL program, it could cost EPA millions of dollars, which it will never be able to recover, and divert EPA from 1 Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 6 of 235 its responsibilities under the Act. The district court’s order will force EPA to head down the wrong path, wasting federal funds and the agency’s limited resources. This Court should stay that order pending appeal to maintain the status quo and avoid irreparable harm. Counsel for the plaintiffs-appellees have been informed of the intended filing of this motion. They oppose it and intend to file a response in opposition within one week. Background A. The Clean Water Act and “constructive submission.” The Clean Water Act requires the States to take a series of regulatory steps to “prevent, reduce, and eliminate pollution.” 33 U.S.C. § 1251(b). The States must first set water quality standards (“standards,” “WQS”). Id. § 1313(a), (b) & (c)(1). The Act and its regulations then require the States to submit a list to EPA—commonly known as a “303(d) list”—that identifies all of the waters that fail to meet those standards. Id. § 1313(d)(1)(A) & (B); 40 C.F.R. §§ 130.2(j) & 130.7(b)(1). Waters on the list are commonly called “impaired waters.” The Act directs the States to establish a “total maximum daily load” (“TMDL”) for each impaired water; that TMDL sets the maximum amount of a pollutant that the water can receive from all sources and still meet the relevant water quality standards. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. §§ 130.7, 2 Appeal: 17-1430 Doc: 13 Filed: 05/08/2017 Pg: 7 of 235 130.7(c)(1), 130.2(g)–(i). Once a State submits a TMDL to EPA, EPA has 30 days to approve or disapprove it. 33 U.S.C. § 1313(d)(2). If EPA disapproves the TMDL, it then has 30 days from that disapproval to establish its own TMDL. Id. The Act does not require the States to submit TMDLs to EPA on any particular schedule, and it does not expressly require EPA to act if the States fail to submit TMDLs. Instead, it only requires the States to submit TMDLs “from time to time” “in accordance with the priority ranking” set by the State. Id. §§ 1313(d)(1)(c), (d)(2). During the early years of the Act, some States neglected their TMDL programs, and some
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