Sierra Club, Inc. v. Leavitt, 2007 WL 1649987 (11th Cir. June 8, 2007)

Sarah Spigener, 3L, University of Mississippi School of Law

Environmental groups appealed a holding by the U.S. District Court for the Northern District of Florida that the U.S. Environmental Protection Agency’s decision to approve Florida’s 2002 impaired waters list, submitted pursuant to the Clean Water Act, was not arbitrary, capricious, or not in accordance with the law.

Clean Water Act
Since the issues in the case center on the duties and responsibilities that the Clean Water Act (CWA)1 imposes, the court found it necessary to explain some key provisions.

Congress passed the CWA to restore and maintain the integrity of our nation’s waters. The Act mandates that the states and the federal government work together to combat water pollution. First, the CWA requires states to establish “water quality standards” for waterbodies within their boundaries. In order to do this, a state must first designate each waterbody’s specific use(s), such as fishing or swimming. The state must then determine the water quality necessary to safely permit the designated use. This level of quality is the “water quality standard.”

Second, each state must compile a list of waterbodies that do not meet its water quality standards or that are not safe enough for their designated uses. This is the state’s “impaired waters list.” Each individual waterbody on this list is a “water quality limited segment” (WQLS). The CWA mandates that states target these WQLSs for pollution control. In order to do this, the states must establish a “total maximum daily load” (TMDL) for pollutants in each WQLS. The TMDL specifies the maximum amount of a particular pollutant that can pass through a waterbody each day without a violation of water quality standards.

Lastly, each state is required to establish a priority ranking for WQLSs. States are required to submit all this information, including the impaired waters list, TMDLs, and priority ranking, to the U.S. Environmental Protection Agency (EPA) every two years. The EPA has the duty to approve or disapprove the lists. If a list or item on a list is disapproved, the EPA must issue its own determination.

Background
This case focuses on Florida’s 2002 update to its impaired waters list. In this update, the Florida Department of Environmental Protection (FDEP) reexamined roughly twenty percent of the state’s waterbodies in accordance with its water quality standards and new Impaired Waters Rule (IWR)2 and submitted the list to the EPA. The EPA for the most part approved the list, but disapproved Florida’s failure to list certain waterbodies and removal of other waterbodies that were on the previous list. As a result, the EPA added eighty WQLSs to Florida’s 2002 list.

The Sierra Club and two other environmental organizations (collectively, Sierra Club) brought suit alleging that EPA’s approval of the list was arbitrary, capricious, and not in accordance with the law. First, Sierra Club challenged the EPA’s approval of Florida’s decision not to rely on fish consumption advisories or data older than 7.5 years to list waterbodies. Second, Sierra Club challenged the EPA’s approval of Florida’s priority ranking of waterbodies, arguing that Florida did not consider statutory standards in creating the ranking. Lastly, Sierra Club challenged the EPA’s approval of Florida’s delisting of waterbodies that violated the water quality standards at least once in the last 7.5 years because the violations were due to natural conditions.

Intervention
The first issue that the appeals court considered was whether the district court had correctly ruled that the FDEP could not intervene in the case. In order to intervene, four requirements must be met: (1) the application to intervene must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may impede or impair his ability to protect that interest; and (4) the applicant’s interest must not be represented adequately by the existing parties. The court agreed with the district court that the FDEP did not prove the fourth requirement because the agency’s objective in the case was the same as the EPA’s objective: to defend Florida’s 2002 list and prevent the addition of waterbodies to that list. Therefore, FDEP was denied intervention.

Standard of Review
The remaining issues on appeal concerned the district court’s grant of summary judgment on some issues. Summary judgment is proper when, viewing the evidence in the light most favorable to the party not asking for summary judgment, there is no genuine factual issue to be tried and the asking party is entitled to a judgment at that time.

Since the summary judgments were based on the EPA’s decisions, the court also explained the standard of review applicable to federal agencies. Under the Administrative Procedure Act (APA), a court must set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.3 When an agency interprets a statute that the agency is responsible for administering, courts must give that interpretation deference if: (1) Congress has delegated interpretative authority to the agency; (2) the statute is silent or ambiguous with respect to the issue at hand; and (3) the agency’s interpretation of the statute is reasonable.4 Courts must also give deference to an agency’s reasonable interpretation of its own regulations.

Issues on Appeal
Sierra Club initially raised a very general argument that the entire 2002 list should be invalidated because it was adopted under the IWR, portions of which were later invalidated. This argument was not presented at the original trial. An appellate court cannot review a legal issue not presented to the trial court unless it is a pure question of law. The court concluded that this was not a pure question of law and declined to address it.

In Sierra Club’s first specific claim, it alleged that the EPA’s decision to approve Florida’s 2002 list was arbitrary and capricious because the list was missing waterbodies for which data indicated dangerous levels of mercury. In this argument, Sierra Club referred to fish consumption advisories issued for the state of Florida and a provision of the IWR that prohibited the use of data more than 7.5 years old. The district court concluded that the EPA’s decision to approve Florida’s methodology was rational.

The appeals court disagreed. Concerning the IWR provision, the court reasoned that even though a state has the right to decide not to use certain data, it still must evaluate all available data. By not evaluating data more than 7.5 years old, Florida failed to meet the requirement. The appeals court overturned the summary judgment and remanded this issue to the district court.

Concerning the use of fish consumption advisories, the court gave deference to the EPA; however, it was a lesser degree of deference than the agency wanted. The EPA had previously issued a guidance letter stating that only information relating to specific waterbodies should be considered in developing a state’s impaired waters list. The court determined that Florida had reasonably relied upon this guidance letter. Since the majority of these advisories contained information from combined waterbodies, Florida’s decision not to rely on them was reasonable. However, Sierra Club insisted that some of the advisories contained information only concerning specific waterbodies. Since this was a disputed issue, the court also remanded it to the trial court for an evaluation of the EPA’s approval of Florida’s decision not to use these advisories.

Sierra Club alleged that the EPA violated the CWA when it added eleven waterbodies to Florida’s list that had been delisted from Florida’s previous list. Sierra Club argued that when the EPA disapproves a list, it should create a completely separate list of its own. The court stated that nothing in the CWA prevented the EPA from adding to the list or required the EPA to make its own list. The court rejected that claim.

Sierra Club also alleged that the EPA’s approval of Florida’s priority ranking of WQLSs for TMDL development was arbitrary and capricious. Florida ranked waterbodies by listing them as high, medium, or low priority, and designated as low priority “all water segments that are listed before 2010 due to fish consumption advisories for mercury (due to the current insufficient understanding of mercury cycling in the environment).”5 Therefore, Sierra Club contended that Florida did not consider specific statutory factors in establishing the ranking. The EPA concluded that Florida did consider these standards. The court vacated the summary judgment and remanded the issue for a factual determination of this claim based upon the EPA’s administrative records.

Sierra Club challenged the EPA’s approval of Florida’s delisting of forty-five waterbody/pollutant combinations that were on Florida’s previous list. According to Sierra Club, several of the waterbodies had exceeded their water quality standards at least once in the past 7.5 years and some of them were delisted because their violations were deemed to be the result of natural conditions. Both sides agreed that a state may remove a waterbody from the list if the waterbody is meeting its water quality standards, is expected to meet those standards within a certain timeframe, or if the original basis for its listing was inaccurate; however, neither party agreed whether the delisted combinations fell under any of those categories. In approving the delisting, the EPA used a totality approach to review whether a waterbody was impaired. Under this approach, the EPA determined that Florida’s delisting was reasonable. Both courts found the EPA’s approach reasonable and affirmed the delisting. Concerning the delisting as a result of natural conditions, Sierra Club argued that there was no exception in the CWA for pollution as a result of natural conditions. The court held that waterbodies not meeting water quality standards solely because of natural conditions did not need to be placed on Florida’s impaired waters list because it contradicted the purpose of the CWA.

Conclusion
The 11th Circuit affirmed the denial of FDEP’s motion to intervene and the entry of summary judgment on Sierra Club’s claim that the EPA’s approval of Florida’s decision to delist certain waterbodies was arbitrary and capricious. The court vacated and remanded the remaining claims - that EPA wrongfully approved Florida’s decision to discern which data to use and evaluate, and whether information in EPA’s administrative records supported the contention that Florida did in fact use all statutory standards to compose Florida’s priority ranking - to the district court for further factual determinations.

Endnotes
1. 33 U.S.C. §§ 1251 et seq.
2. Fla. Admin. Code Ann. r. 62-303.
3. 5 U.S.C. § 706(2)(A).
4. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
5. Sierra Club, Inc. v. Leavitt, 2007 WL 1649987 at *9 (11th Cir. June 8, 2007).