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Anacostia Riverkeeper, Inc. v. Jackson

May 25, 2010

ANACOSTIA RIVERKEEPER, INC. AND FRIENDS OF THE EARTH, PLAINTIFFS,
v.
LISA JACKSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Before the Court is [13] the Environmental Protection Agency's ("EPA") motion for partial dismissal and partial remand without vacatur. In this action, plaintiffs challenge certain pollution limits promulgated by EPA for the waters of the District of Columbia as inconsistent with the Clean Water Act, 33 U.S.C. § 1251 et seq. These limits, called total maximum daily loads ("TMDLs"), define the maximum amount of a pollutant that can enter a segment of water and still permit that water to meet water quality standards. See 33 U.S.C. § 1313(d)(1)(C). The pollutant limits must be expressed as "daily" limits. See Friends of the Earth v. Envtl. Prot. Agency, 446 F.3d 140, 144 (D.C. Cir. 2006).

Plaintiffs assert that the TMDLs at issue here are expressed improperly as "seasonal" or "annual" limits, and therefore are invalid under Friends of the Earth. EPA now concedes that the "holding in Friends of the Earth extends to the [pollutant limits] that are the subject of Plaintiffs' complaint." Def.'s Mot. for Partial Dismissal and Partial Remand ("Def.'s Mot.") [Docket Entry 13], at 1. Hence, the only question for the Court "is the appropriate remedy for this legal deficiency." Id.*fn1

EPA contends that the deficient TMDLs should be remanded to the agency but not vacated. See id. at 9. Plaintiffs, for their part, argue that the Court must vacate the deficient TMDLs, but should stay vacatur "to allow a reasonable time for EPA to revise the TMDLs." Pls.' Opp'n at 8-10. Plaintiffs also requested that the Court "direct the parties to file submissions with the Court regarding the appropriate duration of [a] stay [of vacatur] needed to allow EPA a 'reasonable opportunity' to revise the challenged TMDLs." Id. at 12. The Court agreed with that request, and ordered the parties to submit their proposals regarding the appropriate length of a stay. See Apr. 21, 2010 Order [Docket Entry 21]. The parties have now provided their submissions on this issue, which propose vastly different periods for a stay of vacatur.

The Court concludes that the proper remedy here is to vacate the challenged rules, but stay vacatur in order to permit EPA an opportunity to correct the deficient TMDLs. In Friends of the Earth, which the parties agree resolves plaintiffs' substantive challenges here, the D.C. Circuit remanded similarly-deficient TMDLs to the district court "with instructions to vacate EPA's approvals." 446 F.3d at 148. Recognizing, however, that neither the Friends of the Earth nor the EPA "wants the Anacostia River to go without... TMDLs," the court indicated that "the parties may move to stay the district court's order on remand to give" EPA an opportunity to amend its TMDLs. Id. The D.C. Circuit suggested this remedy despite the fact that the parties raised the possibility, albeit briefly, of remand without vacatur. See Def.'s Reply in Supp. of Mot. to Dismiss [Docket Entry 16], at 4, 7. The D.C. Circuit's remedial conclusion in the analogous situation presented by Friends of the Earth persuades this Court that it should adopt the same remedial approach here.

Moreover, although EPA is correct that a district court has discretion to order a remand without vacatur, see, e.g., La. Fed. Land Bank Ass'n. v. Farm Credit Admin., 336 F.3d 1075, 1085 (D.C. Cir. 2003); Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993), that remedy is unavailable given the deficiencies in the TMDLs here. "The decision whether to vacate depends on [1] 'the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and [2] the disruptive consequences of an interim change that may itself be changed.'" Allied-Signal, 988 F.2d at 150-51 (quoting Int'l Union, United Mine Workers v. Fed. Mine Safety and Health Admin., 920 F.2d 960, 967 (D.C. Cir. 1985)).

Here, EPA's erroneous conclusion that it could express TMDLs in terms of annual or seasonal pollutant limits is unquestionably a material deficiency in the regulation. As EPA acknowledges, the error requires it to develop entirely new TMDLs, based on several years of new data collection. See Def.'s Status Report [Docket Entry 21], Ex. 1 (Second Decl. of Helen Drago ("Second Drago Decl.")), at ¶¶ 11, 13. Quite simply, EPA will be unable to justify the challenged TMDLs "in a manner that is consistent with the statute." Milk Train, Inc. v. Veneman, 310 F.3d 747, 756 (D.C. Cir. 2002); accord WorldCom, Inc. v. FCC, 288 F.3d 429, 434 (D.C. Cir. 2002) (remand without vacatur appropriate where "non-trivial likelihood" that agency would be able to justify rule on remand); Fox Television Stations, Inc. v. Fed. Commc'ns Comm'n, 280 F.3d 1027, 1049 (D.C. Cir. 2002) (vacatur appropriate where rule is "irredeemable"), reh'g granted on other issues, 293 F.3d 537 (D.C. Cir. 2002). Accordingly, the first Allied-Signal factor does not support remand without vacatur. See Heartland Reg'l Med. Ctr. v. Sebelius, 566 F.3d 193,198 (D.C. Cir. 2009) ("When an agency may be able readily to cure a defect in its explanation of a decision, the first factor in Allied-Signal counsels remand without vacatur.").

On the other hand, the second Allied-Signal factor -- the disruptive effect of vacatur --weighs in favor of remand without vacatur. Indeed, as plaintiffs admit, "[n]either the Plaintiffs nor EPA wish for the waters of the District of Columbia to go without TMDLs, nor would the public interest be served by an immediate vacatur." Pls.' Status Report [Docket Entry 22], at 2. But any disruptive effects of vacatur will be mitigated, if not eliminated, by staying vacatur. See Friends of the Earth, 446 F.3d at 148. Accordingly, although the second Allied-Signal factor weighs in favor of remand without vacatur, it cannot outweigh the fact that EPA must develop entirely new TMDLs to correct its error. Because remand without vacatur is inappropriate, and in light of the D.C. Circuit's remedial conclusion in Friends of the Earth, the Court will vacate the challenged TMDLs, but will stay vacatur.

The only remaining question, then, is the appropriate length of a stay of vacatur. Plaintiffs assert that a 240-day stay is appropriate for all TMDLs except for the TMDL at paragraph 24n of plaintiffs' complaint. See Pls.' Status Report at 1. According to plaintiffs, EPA should have until May 1, 2011, to develop the TMDL at paragraph 24n, as it is related to other TMDLs EPA must develop by that date. See id. at 3. Plaintiffs also indicate that "if the Court decides to consider a longer stay, the Court should stay vacatur for no longer than three years." Id. at 1. They base this deadline on the fact that, "[a]s EPA itself concedes, TMDLs are typically completed in three to five years." Id. at 6; see also Def.'s Mot., Ex. 1 (First Decl. of Helene Drago ("First Drago Decl.")), ¶ 8 ("The process of developing a TMDL is complex and time-consuming.... From the point at which data gathering begins, it is not uncommon for the development of a TMDL to take three to five years.").*fn2

EPA asserts that it needs more time than plaintiffs' proposed schedule allows given "(1) the amount of work needed to develop more than 300 TMDLs that will withstand further court review under the [Clean Water Act]; and (2) the resources available to the TMDL program in EPA's Region III and the other demands, including court-ordered demands, on those resources." Def.'s Status Report at 2-3. EPA therefore proposes a four-part stay:

Tier One: a stay until May 31, 2011, for the TMDL referenced in paragraph 24n of plaintiffs' complaint.

Tier Two: a stay until December 31, 2014, for the TMDLs referenced in paragraphs 24a, 24c, 24g, 24i, 24j, 24l of plaintiffs' complaint.

Tier Three: a stay until December 31, 2017, for the TMDLs referenced in paragraphs 24b, 24d, 24f, 24h, 24k, 24m, 24o of plaintiffs' complaint, where the applicable water quality criteria have not changed since the development of the challenged TMDLs.

Tier Four: a stay until December 31, 2020, for the TMDLs referenced in paragraphs 24b, 24d, 24f, 24h, 24k, 24m, 24o of plaintiffs' complaint, where the applicable water quality criteria have ...


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