Natural Resources Defense Council, Inc. v. Costle
568 F.2d 1369, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20028, 186 U.S. App. D.C. 147 (1977)
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Rule of Law:
Under the Federal Water Pollution Control Act (FWPCA), the Administrator of the Environmental Protection Agency (EPA) does not have the authority to exempt entire categories of point source polluters from the National Pollutant Discharge Elimination System (NPDES) permit requirements. The Act's mandate is comprehensive, requiring a permit for any discharge from a point source.
Facts:
- In 1972, Congress passed the Federal Water Pollution Control Act Amendments (FWPCA) to eliminate the discharge of pollutants into the nation's waters.
- The FWPCA established the National Pollutant Discharge Elimination System (NPDES), which makes it unlawful to discharge any pollutant from a "point source" without a permit.
- A "point source" is broadly defined to include any discernible, confined, and discrete conveyance such as a pipe, ditch, or channel.
- In 1973, the Administrator of the Environmental Protection Agency (EPA) issued regulations that exempted certain categories of point sources from the NPDES permit requirements.
- These exempted categories included all silvicultural (forestry) sources, confined animal feeding operations below a certain size, certain irrigation return flows, and separate storm sewers containing only uncontaminated storm runoff.
- The EPA justified these exemptions by citing the administrative infeasibility of processing the massive number of permit applications from these numerous, smaller sources and the need to conserve agency resources.
Procedural Posture:
- The National Resources Defense Council, Inc. (NRDC) filed a lawsuit in the U.S. District Court for the District of Columbia against the EPA Administrator.
- NRDC sought a declaratory judgment that the EPA regulations creating categorical exemptions from the NPDES permit program were unlawful.
- The District Court granted NRDC's motion for summary judgment, holding that the FWPCA does not authorize the Administrator to exclude any class of point sources from the permit program.
- The EPA, as appellant, appealed the District Court's decision to the U.S. Court of Appeals for the District of Columbia Circuit, with NRDC as the appellee.
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Issue:
Does the Administrator of the Environmental Protection Agency have the authority under the Federal Water Pollution Control Act to exempt entire categories of point sources from the National Pollutant Discharge Elimination System (NPDES) permit requirements based on administrative infeasibility?
Opinions:
Majority - Leventhal, Circuit Judge
No. The Administrator of the EPA does not have the authority to exempt categories of point sources from the FWPCA's permit requirements. The plain language of the statute, particularly § 301(a), establishes a total prohibition on the discharge of any pollutant from a point source unless a permit is obtained under § 402. The legislative history confirms that Congress intended the NPDES permit to be the exclusive means for a point source discharger to avoid this prohibition. The court reasoned that the word "may" in § 402, stating the Administrator "may... issue a permit," grants discretion to approve or deny an individual permit, not to create categorical exemptions from the program itself. The court rejected the EPA's administrative infeasibility argument, stating that while it is sensitive to the administrative burden, courts cannot create a revisory power for an agency that is inconsistent with the clear intent of a statute. Instead of exemptions, the court suggested the EPA could use flexible regulatory tools not explicitly barred by the Act, such as issuing area-wide or general permits, to manage the administrative load while still complying with the statutory mandate that all point sources be permitted.
Concurring - MacKinnon, Circuit Judge
The opinion concurs with the majority's conclusion and its practical construction of the law. The concurring opinion expresses concern over the Act's ambitious, technology-forcing nature, which relies on future innovation to meet its strict deadlines and standards. It praises the majority's endorsement of flexible tools like general area permits as a sound and practical way for the agency to meet the Act's difficult requirements without violating the clear statutory text.
Analysis:
This decision solidifies the comprehensive nature of the Federal Water Pollution Control Act's permit program, establishing that administrative burden is not a sufficient legal justification for an agency to ignore a clear congressional mandate. By rejecting categorical exemptions while simultaneously suggesting the use of flexible permitting mechanisms like 'general permits,' the court provided a crucial pathway for the EPA to manage its vast regulatory duties without rewriting the statute. This ruling reinforces the principle of statutory fidelity for administrative agencies and has had a lasting impact on environmental law, making general permits a standard tool for regulating large numbers of similar, smaller pollution sources.
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