is sufficiently NEPA-like; that determination was made at the time of approval. Nor is the agency's role to ensure that the state's environmental reviews of particular projects are correct or consistent with NEPA; that power lies with the state courts or state administrative review process. Instead, EPA's post-approval task is merely to ensure that the plan originally approved by the agency is in fact the plan being used by the state. And because plaintiffs have not alleged that the SERP applied to the Moosic Mountain pipeline is in any material way different from the SERP approved by EPA in 1991, they have not laid a proper predicate for a claim that EPA unreasonably mishandled its limited post-approval review.
Nor have plaintiffs pointed to anything in the statute or its implementing regulations that requires EPA to assume any greater or more intrusive role. Indeed, in light of the opportunity to challenge the application of a SERP to a particular project in state court, it is not clear why EPA should (or, could consistent with Title VI, the purpose of which was to allow the States greater flexibility and discretion in making loans for construction of water treatment projects like the one at issue here) exercise this kind of ongoing and project-specific supervisory role. But, even if EPA had assumed such a heady task, it is far from clear that the Court could review the agency's decision not to object to the way in which a state has applied its previously-approved SERP to a particular project. In the absence of statutory or regulatory standards against which to evaluate such inaction, EPA's decision is likely "committed to agency discretion by law," and thus unreviewable under the APA. 5 U.S.C. § 701(a)(2); see Drake v. FAA, 291 F.3d 59, 70-71 (D.C. Cir. 2002) (holding that an agency decision not to take enforcement action is immune from judicial review in the absence of meaningful standards constraining the agency's decision).
In Schramm, for example, the D.C. Circuit held that an analogous EPA decision not to veto a state's issuance of an NPDES permit had been committed to agency discretion by law. In that context, as in this one, Congress placed the primary regulatory burden on the states, and gave the EPA no clear guideposts to follow in supervising state action. As such, "[g]ranting federal court review of the Agency's actions in cases such as this one would upset the federal-state balance struck by Congress: it would allow parties to create a basis for federal jurisdiction when federal involvement is merely secondary." 631 F.2d at 860-62. Just so here.*fn15
For these reasons, it is clear that plaintiffs have presented no valid basis for challenging EPA's review of the environmental review conducted by Pennsylvania before the PENNVEST loan was extended to the Moosic Mountain pipeline. As such, this claim for relief must also be rejected.
For the reasons stated above, plaintiffs cannot establish that the Moosic Mountain pipeline is a major federal action; the Court therefore lacks jurisdiction to enjoin construction of that project pending a federal NEPA analysis of the pipeline's projected environmental impact. Nor have plaintiffs stated a valid claim that EPA violated the APA by not objecting to the environmental impact analysis performed by the Pennsylvania Department of Environmental Protection. Accordingly, plaintiffs' request for a preliminary injunction and motions for summary judgment will be denied, and summary judgment will be entered in favor of defendants on all claims.
For the reasons given in the attached Memorandum Opinion, it is hereby
ORDERED that plaintiffs' motions for a preliminary injunction are DENIED; it is
FURTHER ORDERED that defendants' motions for summary judgment are GRANTED; it is
FURTHER ORDERED that plaintiffs' motions for summary judgment are DENIED; and it is
FURTHER ORDERED that plaintiffs' complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.