Challenging EPA NPDES Permitting Decisions Remains a Really, Really, Uphill Battle

The decision by the First Circuit Court of Appeals on Friday in Upper Blackstone Water Pollution Abatement Control District v. EPA confirms how difficult it is to challenge EPA NPDES permitting decisions. The case involves nutrient loadings in the Blackstone River and, ultimately, Narragansett Bay. As the opinion discusses, phosphorus in the Blackstone River and nitrogen in Narragansett Bay are causing severe eutrophication problems. As a result, the permit issued by EPA (Massachusetts is one of a handful of states without delegated NPDES programs) contained extremely stringent limits for both phosphorus and nitrogen.

Both the District and the Conservation Law Foundation challenged the permit. The District asserted two separate, but related, challenges. First, it said that EPA issued the permit too early, without waiting for the science to develop sufficiently. This was not a generalized challenge, but specifically related to the District’s development of a computer model which, it asserted, might justify less stringent limits. The Court was not persuaded.

First, it noted the deference due EPA in these situations. Second, it emphasized that deference is even greater given the “scientific and technical nature of the EPA’s decisonmaking.” It also noted the deference due to EPA in interpreting its own regulations. The fundamental issue for the Court in reviewing the delay issue was that:

Neither the CWA nor EPA regulations permit the EPA to delay issuance of a new permit indefinitely until better science can be developed, even where there is some uncertainty in the existing data.

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In almost every case, more data can be collected, models further calibrated to match real world conditions; the hope or anticipation that better science will materialize is always present, to some degree, in the context of science-based agency decisionmaking.

In short, EPA has an obligation to act, and scientific uncertainty is not a basis for delay so long as EPA makes a reasoned decision.

The Court’s decision regarding the limits themselves was similar.

Where the agency follows the proper procedures and acts with a reasonable basis, both its choice of scientific data and interpretation and application of that data to real world conditions are entitled to deference.

That was pretty much the end of the story. The only other point worth noting was the Court’s response to the District’s arguments that EPA did not have a sufficient basis for the precise numbers set as permit limits: “courts will not overturn the agency’s choice of a precise figure where it falls within a ‘zone of reasonableness.’”

Bottom line? Make your best arguments before the agency. Don’t leave any ammunition unused. If there are political arguments to make, make them. If there is political pressure to bring to bear, bring it. Once the permit has been issued, good luck.

If there is a silver lining to the case for the regulated community, it is that, if you succeed in those arguments, you will be in good shape. After all, the Court rejected CLF’s arguments as well as those of the District.

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