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Clean Water Action v. Pruitt

United States District Court, District of Columbia

April 18, 2018

CLEAN WATER ACTION, et al., Plaintiffs,
E. SCOTT PRUITT, Administrator, U.S. Environmental Protection Agency, et al., Defendants.



         Before the Court are five pending motions. For the reasons that follow, the Court will deny the Plaintiffs' Motion for Leave to Amend and Supplement the Complaint, Dkt. 63, and grant the Defendants' Motion to Dismiss, Dkt. 60. In addition, because the Court will grant dismissal, the Court will deny as moot the Plaintiffs' Motion for Summary Judgment, Dkt. 20, the Defendants' Cross-Motion for Summary Judgment or Dismissal or Transfer, Dkt. 32, and the Intervenor-Defendant's Cross-Motion for Summary Judgment or Dismissal or Transfer, Dkt. 49.

         I. Background

         The Clean Water Act prohibits “the discharge of any pollutant by any person” except as authorized by the Act, 33 U.S.C. § 1311(a), and it requires the Environmental Protection Agency and its Administrator (collectively, the EPA) to promulgate effluent limitations and standards governing the discharge of pollutants from power plants, see Id. §§ 1311(b), 1314(b), 1316(a), 1317, 1342(a). An “effluent limitation” is “any restriction established by a State or the Administrator on quantities, rates, and concentrations” of certain pollutants “discharged from point sources, ” such as power plants, into various waters. Id. § 1362(11). The Clean Water Act also requires the EPA to review and, if necessary, revise its effluent limitations and standards. See Id. §§ 1311(d), 1314, 1317(b).

         The EPA enforces effluent limitations and standards through, among other programs, the National Pollutant Discharge Elimination System program. Under that program, the EPA issues permits allowing power plants to discharge pollutants that wash downstream “upon [the] condition that such discharge will meet . . . all applicable requirements under [various provisions of the Clean Water Act].” Id. § 1342(a)(1). The permits “impose limitations on the discharge of pollutants, and establish related monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation's waters.” Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S.Ct. 617, 625 (2018) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 174 (2000)).

         This case involves three actions taken by the EPA with regard to effluent limitations under the Clean Water Act: a final rule promulgated in 2015, an indefinite stay issued in April 2017, and a subsequent final rule promulgated in September 2017.

         A. Effluent Limitations under the Clean Water Act

         The EPA promulgated the Steam Electric Power Plant Effluent Limitations Guidelines Rule (ELG Rule) on November 3, 2015. See 80 Fed. Reg. 67, 838. Relevant here, the ELG Rule addressed effluent limitations and standards for six wastestreams generated by steam electric power plants: bottom ash transport water, combustion residual leachate, flue gas desulfurization wastewater, flue gas mercury control wastewater, fly ash transport water, and gasification wastewater. See Id. at 67, 841-42. The ELG Rule required most power plants to comply with the effluent limitations “as soon as possible” after November 1, 2018, and no later than December 31, 2023. Id. at 67, 854. Within that range, the particular compliance date for each plant would be determined by the plant's National Pollutant Discharge Elimination System permit, which is typically issued by a state environmental agency. See 40 C.F.R. § 423.11(t). The ELG Rule also provided for effluent limitations that took effect immediately for “legacy wastewater, ” i.e., certain wastewaters generated after the ELG Rule but before the future compliance deadlines kicked in. 80 Fed. Reg. at 67, 854-55. The ELG Rule quickly became the subject of legal challenges: the EPA received seven petitions for review, which were consolidated before the U.S. Court of Appeals for the Fifth Circuit. See Consolidation Order, U.S. Judicial Panel on Multidistrict Litigation, Sw. Elec. Power Co. v. EPA, No. 15-60821 (5th Cir. Dec. 8, 2015), Doc. 513301255; see also 82 Fed. Reg. 43, 494, 43, 495. The EPA also received petitions for administrative reconsideration of the ELG Rule. See 82 Fed. Reg. at 43, 495.

         On April 25, 2017, the EPA issued an Indefinite Stay of the ELG Rule. 82 Fed. Reg. 19.005. As authority for the Indefinite Stay, the EPA invoked Section 705 of the Administrative Procedure Act, which permits an agency to “postpone the effective date of action taken by it, pending judicial review, ” when the agency “finds that justice so requires.” 5 U.S.C. § 705; see also 82 Fed. Reg. at 19, 005-06. According to the EPA, the Indefinite Stay sought to preserve the regulatory status quo while the Fifth Circuit litigation remained pending and the EPA reconsidered the ELG Rule. Id. at 19, 005. The Stay indefinitely postponed the compliance deadlines for five of the six wastestreams addressed by the ELG Rule (all but combustion residual leachate). Id. at 19, 005-06. In addition, the EPA noted that it would conduct notice-and-comment rulemaking in order to revise the ELG Rule's compliance deadlines, see Id. at 19.006, which the EPA initiated with a notice of proposed rulemaking in June 2017, see 82 Fed. Reg. 26, 017.

         On September 18, 2017, the EPA promulgated the ELG Rule Amendment. See Postponement of Certain Compliance Dates for ELGs for Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 43, 494. The ELG Rule Amendment withdraws the Indefinite Stay and changes the earliest compliance deadlines for two wastestreams (bottom ash transport water and flue gas desulfurization wastewater) from November 1, 2018 to November 1, 2020 while the EPA completes a new rulemaking on those wastestreams. Id. at 43, 496, 43, 498, 43, 500. Also, by withdrawing the Indefinite Stay, the Amendment changes the “no later than” compliance deadline for bottom ash transport water and flue gas desulfurization wastewater to December 31, 2023, as it had been under the ELG Rule. Id. at 43, 496; see also 40 C.F.R. § 423.13(g)(1)(i), (k)(1)(i). And, for the other three wastestreams[1] affected by the Indefinite Stay, the Amendment permits the effluent limitations and standards initially imposed by the ELG Rule to go back into effect, and the Amendment announces that the EPA does not plan to conduct a new rulemaking for those wastestreams. See 82 Fed. Reg. at 43, 494-96, 43, 498.

         B. Procedural History

         The plaintiffs are eight environmental advocacy organizations that seek to improve water quality, particularly by reducing water pollution from large sources such as power plants.[2]Compl. ¶ 9, Dkt. 1. On May 3, 2017, they filed this action as a challenge to the Indefinite Stay for allegedly violating the Administrative Procedure Act in a number of ways. Id. ¶¶ 1, 19-20, 56-89. On June 13, 2017, the EPA moved to dismiss the case, transfer it to the Fifth Circuit pursuant to 28 U.S.C. § 1631, or stay proceedings. Dkt. 18. The next day, the plaintiffs moved for summary judgment. Dkt. 20. The Court then denied the EPA's motion to dismiss without prejudice but invited the EPA to reassert the same arguments in a consolidated brief in opposition to the plaintiffs' summary judgment motion. Dkt. 23. In the ensuing consolidated briefing, the EPA accepted the Court's invitation by opposing the plaintiffs' motion for summary judgment and cross-moving for summary judgment, dismissal, or transfer.[3] Dkt. 32. The consolidated briefing concluded on September 11, 2017. See Dkt. 57; Dkt. 58.

         One week later, the EPA promulgated the ELG Rule Amendment. Soon after, on September 21, 2017, the EPA again moved to dismiss this case, arguing that the case is moot because the ELG Rule Amendment withdraws the Indefinite Stay challenged by the plaintiffs. Dkt. 60.

         On October 5, 2017, the plaintiffs moved for leave to amend and supplement their complaint to add two claims challenging the ELG Rule Amendment under the Administrative Procedure Act.[4] See Dkt. 63; see also Proposed Am. Compl. ¶¶ 104-111, Dkt. 63-3. In opposition, the EPA argued that the proposed claims are futile because the Court lacks jurisdiction over them. Dkt. 70 at 2-6. In addition, the intervenor-defendants argued that the proposed claims are futile because 28 U.S.C. § 2112 would require this Court to transfer the proposed claims to the Fifth Circuit and, moreover, the proposed claims would unduly expand and delay the litigation before this Court. Dkt. 69 at 18-21, 26-29. Briefing concluded on October 26, 2017. See Dkt. 71. The case was reassigned to the undersigned judge on December 4, 2017. The plaintiffs have since submitted a notice of supplemental authority regarding a recently decided United States Supreme Court case, National Ass'n of Manufacturers v. Department of Defense, 138 S.Ct. 617, 623 (2018). Dkt. 74. The Court now addresses the plaintiffs' motion for leave to amend and supplement the complaint, followed by the EPA's motion to dismiss.

         II. Plaintiffs' Motion for Leave to Amend and Supplement the Complaint

         Whereas their initial complaint challenged the Indefinite Stay, the plaintiffs now seek to add two claims challenging the ELG Rule Amendment. Dkt. 63. The proposed claims assert that the EPA violated the Administrative Procedure Act by promulgating the ELG Rule Amendment (1) in excess of the agency's statutory authority and (2) without considering all relevant factors and providing an adequate justification for the agency's decision. See Proposed Am. Compl. ¶¶ 104-11. The proposed claims, however, are futile, and they would unduly delay and alter the scope of this litigation. Therefore, the Court will deny the plaintiffs' motion.

         A. Legal Standard

         An addition to a pleading may be an “amendment” under Rule 15(a) or a “supplement” under Rule 15(d) of the Federal Rules of Civil Procedure. The distinction “is in most instances of little moment, ” but an amendment “typically rest[s] on matters in place prior to the filing of the original pleading, ” while the “distinguishing feature of [a supplement] is that it sets forth ‘transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.'” United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002) (quoting Fed.R.Civ.P. 15(d)). Because the plaintiffs here seek to add claims challenging a rule promulgated months after the initial complaint, the plaintiffs' request is best styled a motion for leave to supplement their complaint.

         Rule 15(d) of the Federal Rules of Civil Procedure provides that “the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed.R.Civ.P. 15(d) (emphasis added). Some cases state that Rule 15(d) motions are “subject to the same standard” as Rule 15(a) motions, see, e.g., Wildearth Guardians v. Kempthorne, 592 F.Supp.2d 18, 23 (D.D.C. 2008), which would mean that leave is warranted “unless there is sufficient reason, such as ‘undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by [previous] amendments . . . [or] futility of amendment.'” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Cause of Action Inst. v. DOJ, No. 16-2226, 2017 WL 4541352, at *3 (D.D.C. Oct. 10, 2017) (labeling any difference between the two motions “a matter of semantics”).

         But the two rules are not the same. Rule 15(d) is permissive: it tells courts that they “may” grant leave to supplement, while Rule 15(a)(2) states that courts “should” give leave to amend “when justice so requires.” Fed.R.Civ.P. 15; see also Jama v. ICE, 543 U.S. 335, 346 (2005) (“The word ‘may' customarily connotes discretion. That connotation is particularly apt where . . . ‘may' is used in contraposition to the word ‘shall' . . . .”); Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress' use of the permissive ‘may' . . . contrasts with the legislators' use of a mandatory ‘shall' in the very same section” and thus confers an “authority, but not [a] duty[.]”); Baylor v. Mitchell Rubenstein & Assocs., 857 F.3d 939, 947 (D.C. Cir. 2017) (“[I]t is clear that [a Rule's] use of the permissive verb ‘may' refers to the permissive nature of the district judge's authority . . . .”); Anglers Conservation Network v. Pritzker, 809 F.3d 664, 671 (D.C. Cir. 2016) (“Ordinarily, legislation using ‘shall' indicates a mandatory duty while legislation using ‘may' grants discretion.”); Baptist Mem'l Hosp. v. Sebelius, 603 F.3d 57, 63 (D.C. Cir. 2010) (“‘[M]ay' is permissive rather than obligatory.”); Ala. Power Co. v. FERC, 160 F.3d 7, 12 (D.C. Cir. 1998) (same); Antonin Scalia & Bryan A. Garner, Reading Law 112 (2012) (stating that the “traditional, commonly repeated rule . . . that ‘may' is permissive” is “so obvious as to be hardly worth the saying”). The plain text of Rule 15(d) thus permits a court to grant leave to supplement, but imposes no standard requiring a court to do so. See Fed. R. Civ. P. 15 advisory committee's note to 1963 amendment (“Rule 15(d) is intended to give the court broad discretion in allowing a supplemental pleading.”); James Madison Project v. DOJ, 208 F.Supp.3d 265, 277 (D.D.C. 2016) (“The decision to grant leave under Rule 15(d) is discretionary.”).

         Even looking past the text of the rules to this Circuit's caselaw discussing them, the Rule 15(d) standard overlaps with the Rule 15(a)(2) standard, but they are not the “same standard.” Wildearth Guardians, 592 F.Supp.2d at 23. Compare Firestone, 76 F.3d at 1208, with Hall v. CIA, 437 F.3d 94, 101 (D.C. Cir. 2006). Both standards, however, consider futility and delay. “[B]oth motions for leave to amend and motions to supplement should be denied where amendment (or supplementation) would be futile, ” i.e., if the proposed claim would not survive a motion to dismiss. Sai v. DHS, 149 F.Supp.3d 99, 126 (D.D.C. 2015); see also Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (affirming denial of leave to supplement on futility grounds). Also, “[d]elay and prejudice are precisely the matters to be addressed in considering whether to grant motions for supplemental pleadings; such motions are to be ‘freely granted when doing so will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action.'” Hall v. CIA, 437 F.3d 94, 101 (D.C. Cir. 2006) (quoting 6A Wright & Miller, Federal Practice & Procedure § 1504, at 186-87 (2d ed. 1990)); see also Firestone, 76 F.3d at 1208. Because futility and delay undergird the Court's decision to deny plaintiffs' motion for leave to supplement the complaint, there is no need to further analyze the precise differences between the two standards at this time.

         B. Jurisdiction

         In this case, the plaintiffs' proposed claims are futile because this Court lacks jurisdiction to review them. The Administrative Procedure Act generally provides for district court review of EPA actions. 5 U.S.C. § 704. But the Clean Water Act enumerates seven categories of EPA actions for which review lies directly and exclusively in the federal courts of appeals. 33 U.S.C. § 1369(b)(1); see also Nat'l Ass'n of Mfrs., 138 S.Ct. at 623, 626, 628. Under the category relevant here, the federal courts of appeals have exclusive jurisdiction to review EPA actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of [the Clean Water Act].” 33 U.S.C. § 1369(b)(1)(E). The Act defines “effluent limitation” as “any restriction established by a State or the Administrator on quantities, rates, and concentrations” of certain pollutants “discharged from point sources” into various waters. Id. § 1362(11). And “an ‘other limitation' must be similar in kind to an ‘effluent limitation': that is, a limitation related to the discharge of pollutants.” Nat'l Ass'n of Mfrs., 138 S.Ct. at 628. “An ‘other ...

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