Challenging EPA NPDES Permitting Decisions Is Really An Uphill Battle.

The decision last week in City of Taunton v. EPA did not break any new ground, but it is certainly a reminder of just how much of an uphill battle it is to challenge an NPDES permit.

The City of Taunton challenged EPA’s decision to include a numeric limit for nitrogen in Taunton’s renewed permit.  The Court rejected all of Taunton’s challenges in a tone that, while not explicitly disdainful, certainly gives one the impression that it wished that the City had not wasted so much of the Court’s precious time.

Here are just some of the reasons why such challenges are so difficult:

  • Deference is given both to EPA’s permitting decision and to the EAB’s affirmance of that decision.
  • The “scientific and technical nature of the EPA’s decisionmaking” increases the level of deference.
  • The courts (for now!) grant Chevron deference to EPA’s interpretation of the statute and Auer deference to its interpretation of its regulations.
  • EPA has authority to regulate discharges that merely have a “reasonable potential” to cause – or contribute to – an exceedance of a water quality standard.  EPA’s interpretation of this phrase – which of course is given Auer deference – is that is means “some degree of certainty greater than a mere possibility.”  Can you say “precautionary principle”?!
  • “EPA is required to exercise its judgment even in the face of some scientific uncertainty.”
  • Thus, EPA need not prove causation, both because it may regulate under uncertainty and because it may regulate where a discharge merely “contributes” to a water quality exceedance.
  • EPA need not – and in fact may not – delay permit issuance in order to get better data and eliminate uncertainty.

I used to say that the arbitrary and capricious standard means that the agency wins even if it’s wrong, so long as it’s not crazy wrong.  Now, I’m not even sure that the standard is that stringent.

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