Larry Askins v. Ohio Department of Agriculture , 809 F.3d 868 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0005p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LARRY ASKINS; VICKIE ASKINS, ┐
Plaintiffs-Appellants, │
│
│ No. 15-3147
v. │
>
│
OHIO DEPARTMENT OF AGRICULTURE; OHIO │
ENVIRONMENTAL PROTECTION AGENCY; UNITED │
STATES ENVIRONMENTAL PROTECTION AGENCY, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:14-cv-01699—David A. Katz, District Judge.
Argued: October 6, 2015
Decided and Filed: January 6, 2016
Before:COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Steve J. Edwards, Grove City, Ohio, for Appellants. Kelly D. McCloud, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Ohio Appellees. Peter
Krzywicki, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal
Appellee. ON BRIEF: Steve J. Edwards, Grove City, Ohio, for Appellants. Kelly D.
McCloud, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Ohio
Appellees. Peter Krzywicki, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Federal Appellee.
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_________________
OPINION
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COLE, Chief Judge. Plaintiffs-Appellants Larry and Vickie Askins filed a citizen suit
alleging that Defendants-Appellees U.S. Environmental Protection Agency (“U.S. EPA”), Ohio
Environmental Protection Agency (“Ohio EPA”), and Ohio Department of Agriculture (“ODA”)
(collectively, “Defendants”) violated the Clean Water Act’s agency permitting procedures. The
district court held that the Clean Water Act does not permit suits against regulators for regulatory
functions and dismissed for lack of subject-matter jurisdiction. We affirm.
I. BACKGROUND
The U.S. EPA, Ohio EPA, and ODA work together to abate pollution in Ohio. Pursuant
to federal and state laws, each entity exercises authority over different types of pollution from
specific sources. At issue in this case is the authority to control water pollution caused by certain
animal feeding operations, which is governed by the Clean Water Act, 33 U.S.C. § 1251 et seq.
A. The Clean Water Act
The Clean Water Act grants the U.S. EPA express rights and responsibilities to “restore
and maintain the chemical, physical, and biological integrity of the Nation’s waters,” but
preserves states’ “primary responsibilities and rights” to abate pollution. 33 U.S.C.
§ 1251(a)−(b). The Clean Water Act requires certain animal feeding operations to obtain a
permit under the national pollutant discharge elimination system (“NPDES”) prior to discharging
any pollutant into navigable waters. 33 U.S.C. §§ 1311(a), 1342(a). The U.S. EPA may approve
a state to administer a state-NPDES program, but the U.S. EPA retains authority to supervise it
and withdraw approval. 33 U.S.C. § 1342(b)−(c); 40 C.F.R. § 123.24. Once approved, a state
must seek permission from the U.S. EPA before it can transfer all or part of the state-NPDES
program to another state agency. 40 C.F.R. § 123.62(c).
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B. Ohio’s NPDES Program
In 1974, the U.S. EPA approved the Ohio EPA to administer the state-NPDES program.
In 2001, the Ohio legislature authorized ODA to submit an application to the U.S. EPA to take
over the part of the state-NPDES program that regulates animal feeding operations. S.B. 141,
2000 Leg., 123rd Gen. Assemb. (Ohio 2001) (codified at Ohio Rev. Code § 903.08(A) (eff. Mar.
15, 2001)). The legislation also amended Ohio’s NPDES laws to reflect the transfer, which were
to go into effect after ODA received the U.S. EPA’s approval. ODA submitted its application to
the U.S. EPA in 2006. After a series of amendments to the federal and Ohio NPDES laws, ODA
submitted its revised application to the U.S. EPA on July 8, 2015, while this appeal was pending.
C. Litigation Commences
The Askinses allege that the Ohio EPA transferred its authority to administer part of the
state-NPDES program to ODA when the legislation became effective in 2001. In August 2014,
after several administrative appeals challenging specific NPDES permits to animal feeding
operations, the Askinses filed suit in the Northern District of Ohio under the Clean Water Act’s
citizen-suit provision. They alleged that the following conduct violated the Clean Water Act:
(1) the Ohio EPA failed to inform the U.S. EPA that it transferred authority over part of the state-
NPDES Program to ODA until five years after it had done so; (2) ODA administered part of the
state-NPDES Program without approval from the U.S. EPA; (3) the U.S. EPA permitted Ohio
EPA to transfer part of the state-NPDES program without its approval; and (4) the U.S. EPA
allowed ODA to administer part of the state-NPDES program without its approval.
The district court dismissed all of the claims, holding that the Askinses failed to establish
a private cause of action under the Clean Water Act, that the U.S. EPA did not fail to perform a
non-discretionary duty under the Clean Water Act, and that Defendants did not violate the Clean
Water Act. See Askins v. Ohio Dep’t of Agriculture, No. 14-CV-1699 (N.D. Ohio Jan. 27, 2015).
The Askinses appealed, arguing that if the Clean Water Act does not permit this suit, “a state
agency can run amok and not one citizen in Ohio can stop the resulting chaos.”
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 4
II. ANALYSIS
A. Standard of Review
When a trial court’s ruling on jurisdiction is based in part on the resolution of factual
disputes, a reviewing court must accept the district court’s factual findings, unless they are
clearly erroneous, and review the district court’s application of the law to the facts de novo. RMI
Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir. 1996). However, it is
not necessary for us to reach the factual disputes and merits of the Askinses’ claims, as the
district court did. Accordingly, we review de novo the district court’s dismissal under Fed. R.
Civ. P. 12(b)(1) for lack of subject-matter jurisdiction and construe the facts in a light most
favorable to the Askinses. See id. at 1134−35; Jones v. City of Lakeland, Tenn., 224 F.3d 518,
520 (6th Cir. 2000).
B. Claims Against the Ohio EPA and ODA
In their first and second claims, the Askinses allege that the Ohio EPA and ODA violated
the Clean Water Act. The Clean Water Act permits citizen suits “against any person (including .
. . any other governmental . . . agency to the extent permitted by the eleventh amendment to the
Constitution) who is alleged to be in violation of an effluent standard or limitation,” relevantly
defined here as “a permit or condition thereof issued under [the NPDES program].” 33 U.S.C.
§ 1365(a)(1), (f)(6).
States may request permission from the U.S. EPA to administer a state-NPDES program
after the U.S. EPA promulgates certain guidelines that govern monitoring, reporting,
enforcement, funding, personnel, and manpower. See 33 U.S.C. §§ 1342(b), 1314(i)(2). Under
this authority, the U.S. EPA enacted a regulation that requires a state to notify the U.S. EPA if it
intends to transfer authority over part of the state-NPDES program to a different agency.
40 C.F.R. § 123.62(c) (“notification requirement”). The new agency may not administer any
part of the state-NPDES program without the U.S. EPA’s prior approval. Id. The Askinses
argue that compliance with this notification requirement is “part of every NPDES permit issued
by Ohio.” Therefore, they argue, Ohio EPA and ODA are in violation of “a condition” of every
NPDES permit issued because they failed to obtain the U.S. EPA’s approval prior to the transfer.
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As explained more fully below, this argument fails because (1) violation of the notification
requirement is not actionable in a citizen suit; (2) the notification requirement is not a
“condition” of a permit; and (3) there is no private cause of action against regulators for violating
procedural regulations. Each of these reasons deprives us of jurisdiction over the Askinses’ first
and second claims.
1. Violation of the notification requirement is not actionable in a citizen suit
The Askinses allege that Ohio EPA and ODA’s failure to notify the U.S. EPA prior to
transferring part of the state-NPDES program is a violation of a permit. However, a state is not
required to comply with the notification requirement to avoid a citizen suit: “[c]ompliance with a
permit issued pursuant to [the NPDES program] shall be deemed compliance, for purposes of
[citizen suits], with §§ 1311, 1312, 1316, 1317, and 1343 [defining water standards].” 33 U.S.C.
§ 1342(k). Therefore, it is axiomatic that violation of a provision other than §§ 1311, 1312,
1316, 1317, or 1343 cannot invoke the Clean Water Act’s citizen-suit provision. See id.; City of
Cleveland v. Ohio, 508 F.3d 827, 847 (6th Cir. 2007) (the canon expressio unius est exclusio
alterius “justif[ies] the inference that [associated] items not mentioned were excluded by
deliberate choice, not inadvertence” and “reading the regulation expansively would
impermissibly create de facto a new regulation under the guise of interpreting a regulation.”
(citations and internal quotation marks omitted)).
The notification requirement at issue here was enacted pursuant to § 1314, which is not
enumerated as requiring compliance for purposes of the citizen-suit provision. See 33 U.S.C.
§ 1342(k); 40 C.F.R. § 123.62(c) (enacting the notification requirement, which the Askinses
argue was pursuant to 33 U.S.C. § 1314(i)(2)). Accordingly, the Clean Water Act does not
permit a citizen suit for violating that regulation.
2. The notification requirement is not a “condition” of a permit
The Clean Water Act requires the U.S. EPA to prescribe “conditions” for permits that
will also be applicable to state permit programs. 33 U.S.C. § 1342(a)(2)–(3). The Askinses
allege that the notification requirement, enacted under 33 U.S.C. § 1314(i)(2), is a “condition” of
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 6
a permit. However, this interpretation requires us to ignore language in the statute and accept an
internal contradiction.
First, the Askinses’ argument ignores some of the words in the statute, which is contrary
to the canons of statuary construction. See Bennett v. Spear, 520 U.S. 154, 173 (1997) (“It is the
cardinal principle of statutory construction that it is our duty to give effect, if possible, to every
clause and word of a statute rather than to emasculate an entire section.” (citations omitted)).
For example, the U.S. EPA is required to enact conditions that “assure compliance with the
requirements of paragraph (1),” which permits the U.S. EPA to issue a NPDES permit “upon
condition that such discharge will meet . . . all applicable requirements under §§ 1311, 1312,
1316, 1317, 1318, and 1343.” 33 U.S.C. §1342(a)(1)−(2). Section 1314 is not enumerated as
requiring “conditions.” Further, the NPDES provision references § 1314(i)(2) as a timing
mechanism, triggering when states may begin applying to administer a state-NPDES program,
rather than a substantive requirement, as the Askinses argue. See 33 U.S.C. § 1342(b) (“At any
time after the promulgation of the guidelines required by [§ 1314(i)(2)] . . . each State desiring to
administer its own permit program . . . may submit to the [U.S. EPA an application].” (emphasis
added)).
Second, the Askinses’ argument fails to distinguish between the Clean Water Act’s
separate requirements for NPDES programs versus NPDES permits. References to § 1314 in the
NPDES provision refer to the U.S. EPA’s approval of a “state permit program,” not the state’s
approval of individual permits. See 33 U.S.C. § 1342(c)(1)−(2). The notification requirement,
40 C.F.R. §123.62(c), falls under regulations entitled “Program Approval, Revision, and
Withdrawal,” 40 C.F.R. Pt. 123, Subpt. D, §§ 123.61−64. (emphasis added). On the other hand,
provisions referencing the permit itself identify discharge restrictions, none of which appear in
§ 1314, which is at issue here. See, e.g., 33 U.S.C. § 1342(a)(1), (b)(1)(A), (b)(2). Indeed, the
thirteen uses of the word “condition” in the NPDES provision relate to the permit itself, not the
NPDES program as a whole. See 33 U.S.C. § 1342(a)(1)–(3) and (5), (b)(1)(C)(i) and (iii),
(b)(8), (d)(2), (h). More telling of this distinction, the U.S. EPA enacted regulations entitled
“Permit Conditions,” which refer to the terms of the permit itself, rather than the program that
administers them. Compare 40 C.F.R. Pt. 122, Subpt. C, §§ 122.41–50 (entitled “Permit
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 7
Conditions”), with Pt. 123, Subpt. D, §§ 123.61−64 (entitled “Program Approval, Revision, and
Withdrawal”).
Third, the Askinses’ broad reading of the notification requirement as a “condition” of a
permit contradicts NPDES requirements. For example, state and federal permit “conditions”
must be the same, see 33 U.S.C. § 1342(a)(3), but the U.S. EPA would not seek to transfer a
state-NPDES program from one state agency to another, nor could it seek transfer approval from
itself. Also, a state-NPDES program is required to have the authority to terminate the permits it
issues for cause for violating a “condition” of the permit, 33 U.S.C. § 1342(b)(1)(C)(i), which,
under the Askinses’ reading, would mean a state may terminate a permit for cause for its own
violation of permitting regulations. Finally, a condition is “[s]omething demanded or required as
a prerequisite to the granting or performance of something else; a provision, a stipulation.” OED
Online “condition, n.” (Oxford Univ. Press 2015). However, the U.S. EPA does not demand any
prerequisites from the state for each individual permit the state issues, it only demands
conditions for approving the entire state program. See 33 U.S.C. § 1342.
Accordingly, the Clean Water Act does not prescribe the notification requirement as a
“condition” of a permit.
3. There is no private cause of action against regulators for violating procedural
regulations
The Askinses argue that a citizen may sue a regulator for failing to follow purely
procedural regulations. However, the cases they cite do not support their argument, which is also
refuted by other provisions in the Clean Water Act, similar cases, and legislative history.
In Decker v. Northwest Environmental Defense Center, citizens invoked the Clean Water
Act’s citizen-suit provision against the state of Oregon, among other defendants, as a polluter—
not a regulator. 133 S. Ct. 1326, 1333 (2013). Indeed, there was no mention of the state of
Oregon as a regulator. See generally, id. Likewise, polluters, not regulators, were sued in
Ecological Rights Foundation v. Pacific Lumber Co. Ecological Rights, 230 F.3d 1141 (9th Cir.
2000). Notably, no regulators were named as a defendant in Ecological Rights Foundation. In
dicta, the Ninth Circuit stated “the Clean Water Act allows citizen suits based on violations of
any conditions of a NPDES permit, even those which are purely procedural,” citing the citizen-
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 8
suit provision and 33 U.S.C. § 1318. Id. at 1151. To the extent this suggests a citizen may sue
for procedural violations under § 1318, it is not persuasive because the Clean Water Act does not
require compliance with § 1318, or other procedural provisions, to avoid a citizen suit. See 33
U.S.C. § 1365(f) (permitting citizens to sue for violations of §§ 1311, 1312, 1316, 1317, 1341,
1342, 1345(d)); 33 U.S.C. § 1342(k) (“Compliance with a permit . . . shall be deemed
compliance, for purposes of [a citizen suit], with §§ 1311, 1312, 1316, 1317, and 1343.”). In any
event, the Askinses allege a violation of § 1314, which discusses procedural regulations for
states, not § 1318, which discusses procedural regulations for owners of pollutant sources. At
best, Decker and Ecological Rights Foundation suggest that a citizen may sue for procedural
violations only if the violations result in water pollution without a NPDES permit. Here, the
Askinses do not allege that the Ohio EPA or ODA themselves polluted the water.
We must respect the limited nature of citizen suits under the Clean Water Act.
If Congress intended the citizen suit to be all encompassing, it would have permitted suit for all
violations of the Clean Water Act, rather than specifying limited circumstances. See 33 U.S.C.
§ 1365(a)(1)(A) (permitting a citizen suit against persons “alleged to be in violation of an
effluent standard or limitation”); see also Bennett, 520 U.S. at 173 (requiring courts to “give
effect . . . to every clause and word of a statute”); City of Cleveland, 508 F.3d at 847 (expressio
unius est exclusio alterius). Congress also would not have limited venue to “action[s] respecting
a violation by a discharge source of an effluent standard or limitation . . . in the judicial district
in which such source is located.” 33 U.S.C. § 1365(c)(1) (emphasis added). Instead, the U.S.
EPA and states were meant to be the primary enforcers of the Clean Water Act: “[t]he [Senate]
Committee [on Public Works] intends the great volume of enforcement actions [to] be brought
by the State.” Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987)
(quoting S. Rep. No. 92-414, p. 64 (1971)); see also Sierra Club v. Hamilton Cty. Bd. of Cty.
Comm’rs, 504 F.3d 634, 637, 642, n.5 (6th Cir. 2007); 33 U.S.C. §§ 1251, 1319. The citizen suit
serves only as a backup, “permitting citizens to abate pollution when the government cannot or
will not command compliance.” Gwaltney, 484 U.S. at 62 (emphasis added) (citing legislative
history). Citizen suits are “meant to supplement rather than to supplant governmental action
[therefore] citizen suits must fulfill several procedural prerequisites.” Hamilton Cty. Bd. of Cty.
Comm’rs, 504 F.3d at 637 (quoting Gwaltney, 484 U.S. at 60).
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 9
Paradoxically, the Askinses’ expansive reading of the citizen-suit provision would grant
citizens greater enforcement authority than the U.S. EPA. For example, the sixty-days’ notice
period required for a citizen suit, 33 U.S.C. § 1365(b), is shorter than the ninety-days’ cure
period to which a state is entitled before the U.S. EPA can proceed against it, § 1342(c)(3).
Further, in a citizen suit, the district court may enter an order to enforce the effluent standard or
limitation violated and award civil penalties and costs. See 33 U.S.C. § 1365(a), (d). However,
the U.S. EPA cannot obtain these remedies against a state, and is limited to withdrawing
approval of the state-NPDES program. See 33 U.S.C. § 1342(c)(3); 40 C.F.R. § 123.63.
Congress did not intend to give citizens greater and faster enforcement authority against a state
than the U.S. EPA.
Other cases construing nearly identical environmental citizen-suit provisions have
reached a similar conclusion—that a regulator’s failure to follow procedural regulations is not
grounds for a citizen suit. For example, in Sierra Club v. Korleski, we held that the Clean Air
Act’s identical citizen-suit provision did not permit suits against regulators because of the citizen
suit’s potential penalties, shortened notice periods, different language referring to polluters
versus deficient regulators, and relationship to the agency-enforcement provisions. 681 F.3d
342, 348–50 (6th Cir. 2012). In reaching that conclusion, we adopted the Supreme Court’s
reasoning in Bennett v. Spear, construing an almost identical citizen-suit provision in the
Endangered Species Act. 520 U.S. at 173. The Court in Bennett also found that citizen suits for
regulatory functions under the first prong of the citizen-suit provision would render superfluous
the other prong, which permitted suits against the federal government as a regulator only for
failing to perform non-discretionary regulatory acts or duties. Id.For similar reasons, the Clean Water Act does not permit citizen suits against regulators.
As discussed above, the citizen-suit provision provides greater penalties and faster enforcement
than the agency-enforcement provisions. Compare 33 U.S.C. § 1365(a), (b), (d), with
§ 1342(c)(3). In addition, the agency-enforcement provision distinguishes a “permit violation”
from a state’s failure to properly regulate the state-NPDES program. For example, the Clean
Water Act uses the term “violate” or “violation” to refer to polluters who do not comply with a
discharge limitation. See 33 U.S.C. §§ 1365(a), 1342(h), 1342(k), 1319(a)(1), 1319(a)(3).
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 10
However, regulators who fail to follow regulatory procedures are described as “not administering
a program . . . in accordance with requirements,” 33 U.S.C. § 1342(c)(3), or failing to “enforce
such permit conditions or limitations effectively,” § 1319(a)(2). Finally, the ability to sue
regulators for regulatory failures under the first prong of the citizen-suit provision, 33 U.S.C. §
1365(a)(1), would render superfluous the second prong, § 1365(a)(2), which permits suits against
the U.S. EPA only for non-discretionary regulatory failures.
Accordingly, the Clean Water Act does not permit citizen suits against regulators, who
are not polluters, for procedural violations.
***
Because violation of the notification requirement is not actionable in a citizen suit, the
Clean Water Act does not prescribe the notification requirement as a “condition” of a permit, and
the Clean Water Act does not permit citizen suits against regulators for procedural violations,
this court lacks jurisdiction over the Askinses’ first and second claims against the Ohio EPA and
ODA.
C. Claims Against the U.S. EPA
In their third and fourth claims, the Askinses allege the U.S. EPA violated the Clean
Water Act. The Clean Water Act permits suits against the U.S. EPA as a regulator only if it fails
to perform a non-discretionary duty. 33 U.S.C. § 1365(a)(2); see also Dep’t of Energy v. Ohio,
503 U.S. 607, 615 (1992) (reciting that any waiver of the United States’s sovereign immunity
must be unequivocal and must be narrowly construed). Here, the Askinses allege the U.S. EPA
was required to “conduct a hearing whenever a State is not administering a program in
accordance with [NPDES program rules under] 33 U.S.C. § 1342(b).”
However, the Clean Water Act does not require the U.S. EPA to conduct a hearing if a
state fails to administer properly a state-NPDES program:
Whenever [the U.S. EPA] determines after public hearing that a State is not
administering a [state-NPDES] program approved . . . in accordance with
requirements of this section, [after notice and time to cure, the U.S. EPA] shall
withdraw approval of such program. [The U.S. EPA] shall not withdraw approval
No. 15-3147 Askins, et al. v. Ohio Dep’t of Agric., et al. Page 11
of any such program unless [it] shall first have notified the State, and made
public, in writing, the reasons for such withdrawal.
33 U.S.C. § 1342(c)(3). While the Clean Water Act does require the U.S. EPA to withdraw
approval of a state-NPDES program after a hearing, notice, and time to cure, it does not require
the U.S. EPA to hold a hearing in the first place. See id. Accordingly, the non-discretionary
action does not kick in until after the hearing, but the hearing itself is discretionary. See id.Here, the U.S. EPA did not hold a hearing regarding whether Ohio EPA or ODA were
not meeting the requirements of the state-NPDES program, nor was it required to. Because the
Askinses have not identified any non-discretionary duty the U.S. EPA failed to perform, there is
no cause of action under the Clean Water Act. Accordingly, we lack jurisdiction over the
Askinses’ third and fourth claims against the U.S. EPA.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s dismissal for lack of subject-
matter jurisdiction. Because the Clean Water Act prohibits this suit, we need not address the
merits of the Askinses’ claims, i.e., whether Defendants actually violated the Clean Water Act.