Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency
37 ERC (BNA) 1953, 16 F.3d 1395, 24 Envtl. L. Rep. (Envtl. Law Inst.) 20496 (1993)
Rule of Law:
Under the Clean Water Act, the EPA must give deference to state-developed water quality standards if they are scientifically defensible and protective of designated uses, even if they differ from EPA's own guidance. Furthermore, EPA's scientific guidance documents are not 'final agency actions' subject to judicial review under the Administrative Procedure Act.
Facts:
- On September 11, 1989, the Maryland Department of the Environment (MDE) sought to revise Maryland's water quality standards to allow dioxin in the amount of 1.2 parts per quadrillion (ppq).
- MDE chose the 1.2 ppq criterion based on the Food and Drug Administration's (FDA) less conservative cancer potency factor, believing EPA's factor overestimated dioxin's carcinogenic potential.
- After public hearings, Maryland adopted the 1.2 ppq standard and submitted it to EPA for review and approval.
- On December 11, 1989, the Virginia State Water Control Board (VSWCB) proposed to revise its water quality standards to include the 1.2 ppq dioxin standard.
- After public hearings, VSWCB submitted its proposal to EPA for review and approval on September 27, 1990.
- EPA approved the Maryland standard on September 12, 1990, and the Virginia standard on February 25, 1991.
- Accompanying each approval, EPA issued a Technical Support Document (TSD) which concluded that Maryland's and Virginia's use of the 1.2 ppq standard for dioxin was scientifically defensible, protective of human health, and in full compliance with the Clean Water Act.
Procedural Posture:
- The Natural Resources Defense Council (NRDC) filed suit in federal district court (Eastern District of Virginia) challenging the EPA's approval of Maryland's water quality standards for dioxin and the EPA's 1984 dioxin criteria document.
- The Environmental Defense Fund (EDF) filed a separate suit in federal district court (Eastern District of Virginia) challenging the EPA's approval of Virginia's water quality standards for dioxin.
- The district court consolidated the NRDC and EDF suits.
- In Natural Resources Defense Council v. EPA, 770 F.Supp. 1093 (E.D.Va.1991) (NRDC I), the district court dismissed original Count One of the Maryland complaint, finding that Section 304(a) of the Clean Water Act does not impose a mandatory duty on EPA to develop or update numerical criteria for all identifiable effects of dioxin.
- The district court in NRDC I allowed NRDC to amend Count One to assert a claim solely under the Administrative Procedure Act (APA).
- In Natural Resources Defense Council v. EPA, 806 F.Supp. 1263 (E.D.Va.1992) (NRDC II), the district court granted EPA's motions to dismiss and for partial summary judgment, holding that EPA sufficiently reviewed the Maryland and Virginia dioxin standards and did not abuse its discretion.
- The district court in NRDC II also dismissed amended Count One of the Maryland complaint, ruling that NRDC failed to exhaust administrative remedies and that EPA's 1984 criteria document was not a reviewable final agency action.
- NRDC and EDF (Plaintiffs-Appellants) appealed the district court's decisions to the United States Court of Appeals for the Fourth Circuit.
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Issue:
1. Did the Environmental Protection Agency (EPA) act arbitrarily or capriciously by approving Maryland's and Virginia's water quality standards for dioxin, which adopted a less stringent criterion than EPA's guidance, when the states' standards were found to be scientifically defensible and protective of designated uses under the Clean Water Act? 2. Is the EPA's 1984 dioxin criteria document a 'final agency action' subject to judicial review under the Administrative Procedure Act?
Opinions:
Majority - Britt, District Judge
No, the Environmental Protection Agency (EPA) did not act arbitrarily or capriciously by approving Maryland's and Virginia's water quality standards for dioxin. The court found that states have the primary role in establishing water quality standards under the Clean Water Act (CWA), and EPA's function is to review those standards for approval, not to impose its own recommended criteria. EPA's duty is to ensure the state's decision is scientifically defensible and protective of designated uses, as specified in 40 C.F.R. §§ 131.5(a), 131.6(c), 131.11(a) & (b). The court applied a highly deferential 'arbitrary or capricious' standard of review to EPA's approval. EPA conducted an extensive analysis, issuing Technical Support Documents (TSDs) for each state's standard, and independently found each factor and assumption (including cancer potency, risk level, fish consumption, and bioconcentration factor) to be scientifically defensible. The court deferred to EPA's technical judgment regarding scientific debates, noting it does not sit as a scientific body. The CWA and regulations allow states to adopt multiple criteria for the same pollutant, and if multiple uses are designated for a water body, criteria must support the most sensitive use. EPA limited its review of the numeric dioxin criteria to human health protection, acknowledging that separate narrative criteria protecting aquatic life and wildlife could require more stringent controls in permitting actions. No, the EPA's 1984 dioxin criteria document is not a 'final agency action' subject to judicial review under the Administrative Procedure Act (APA). Applying the factors from FTC v. Standard Oil Co., the court determined that EPA's 1984 criteria document is not a 'definitive' statement of its position nor does it have the status of law compelling immediate compliance. It serves as a non-regulatory scientific assessment and a useful guide for states, becoming regulatory only when adopted by a state. The document does not create rights or responsibilities or directly affect the day-to-day business of parties like NRDC. The court concluded that judicial review at this stage would be premature and foster unnecessary piecemeal litigation, especially since EPA was actively reassessing its dioxin criteria. The court affirmed the district court's dismissal, trusting EPA to expedite its ongoing review.
Analysis:
This case significantly clarifies the division of authority between the EPA and states under the Clean Water Act, reinforcing the principle of cooperative federalism. It establishes that courts will grant substantial deference to the EPA's technical and scientific judgments when reviewing state water quality standards, provided the EPA can demonstrate the state's rationale is scientifically defensible and protects designated uses. Moreover, the decision limits the scope of judicial review under the Administrative Procedure Act by holding that EPA's scientific guidance documents, unless formally adopted into regulations or otherwise finalized, do not constitute 'final agency action.' This limits pre-enforcement challenges to EPA's non-regulatory guidance, potentially delaying litigation until states act upon that guidance.
