Natural Resources Defense Council, Inc. v. Environmental Protection Agency ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Plaintiff,
v. Civil No. 16-1861 (JDB)
ENVIRONMENTAL PROTECTION
AGENCY, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Natural Resources Defense Council, Inc. (“NRDC”) has moved under Federal
Rule of Civil Procedure 54(b) for the Court to reconsider its 2018 decision giving defendant
Environmental Protection Agency (“EPA”) discretion as to how to establish a new total maximum
daily load (“TMDL”) for trash in the Anacostia River. NRDC contends that little progress has
been made since that 2018 decision and that the Court should require EPA to have a TMDL in
place within one year. EPA opposes, arguing that development of the TMDL is continuing apace
and that NRDC has not met the high standard for reconsideration under Rule 54(b). For the reasons
that follow, the Court agrees with EPA and will deny the motion. However, given the slow pace
of development to date, the Court will require EPA to submit status updates every three months
going forward.
Background
I. The Clean Water Act
The Clean Water Act, passed in 1972, requires states and the District of Columbia to
“institute comprehensive water quality standards establishing water quality goals for all intrastate
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waters.” PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704 (1994); see
33 U.S.C. § 1313(a)–(c). The Act embodies a “cooperative federalism framework” whereby the
states and EPA “work[] together to clean the Nation’s waters.” Am. Farm Bureau Fed’n v. EPA,
792 F.3d 281, 288 (3d Cir. 2015). At issue in this case is one component of that complex statute,
calling for the establishment of a “total maximum daily load” of pollutants in certain waters. See
33 U.S.C. § 1313(d)(1)(C).
The creation of a TMDL is just one part of a multistep process, with each step “placing
primary responsibility for pollution controls in state hands with ‘backstop authority’ vested in the
EPA.” Am. Farm Bureau Fed’n, 792 F.3d at 289. At the first step in the process, a state is required
to identify a given waterbody’s “designated use[],” such as recreation or wildlife preservation. See
Nat. Res. Def. Council v. EPA (“NRDC I”), 301 F. Supp. 3d 133, 136–37 (D.D.C. 2018) (quoting
33 U.S.C. § 1313(c)(2)(A)). The state must then set a target water quality based on that use. See
id. at 137. At this point, EPA must either approve or disapprove the water quality standards; if
EPA disapproves, it must set its own standards for the waterbody. See 33 U.S.C. § 1313(a)(3)(A)-
(C) & (b).
Next, the state must “identify those waters within its boundaries” that do not meet the
established water quality standards, otherwise known as impaired waters. Id. § 1313(d)(1)(A).
For those impaired waters, the Act requires, in the first instance, states—not EPA—to establish a
TMDL for the pollutants causing the impairment. Id. § 1313(d)(1)(C). The TMDL must be set
“at a level necessary to implement the applicable water quality standards with seasonal variations
and a margin of safety which takes into account any lack of knowledge concerning the relationship
between effluent limitations and water quality.” Id.; see Nat. Res. Def. Council v. Muszynski, 268
F.3d 91, 94 (2d Cir. 2001) (“In effect, a TMDL posts a limit on the total amount of a pollutant a
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waterbody may receive over a period of time.”). Once a state has established a TMDL for the
pollutants in a given waterbody, the state must submit the TMDL to EPA for approval. See 33
U.S.C. § 1313(d)(2). Here again, EPA must either approve or disapprove the state TMDL, this
time within thirty days, and if EPA disapproves, it must establish its own federal TMDL within
thirty days of that disapproval. Id.
The Act does not itself set a deadline for when a state is required to establish and submit a
TMDL to EPA. It largely leaves that judgment up to the state, requiring only that the state submit
TMDLs “from time to time,” “in accordance with [the state’s] priority ranking” for its waters,
which must “tak[e] into account the severity of the pollution and the uses to be made of such
waters.” Id. § 1313(d)(1) & (2). In the years since the Act was enacted, courts have acknowledged
that “TMDLs take time and resources to develop and have proven to be difficult to get just right.”
Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 14 n.8 (1st Cir. 2012);
see, e.g., S.F. BayKeeper v. Whitman, 297 F.3d 877, 881 (9th Cir. 2002) (“The development of
TMDLs to correct the pollution is obviously a more intensive and time-consuming project than
simply identifying the polluted waters.”); see also Am. Farm Bureau Fed’n, 792 F.3d at 308
(discussing portions of the Act’s legislative history stating that developing a TMDL will be “time
consuming and difficult”).
Still, some courts have also recognized that, at some point, delay is unacceptable under the
Act, and have established what is known as the “constructive submission” doctrine to identify
when a delay becomes problematic. See Ohio Valley Envtl. Coal., Inc. v. Pruitt, 893 F.3d 225,
229 (4th Cir. 2018). Under that doctrine, “a prolonged failure ‘by a state to submit TMDLs will
be construed as a constructive submission of no TMDLs, which in turn triggers EPA’s
nondiscretionary duty to act’”—that is, the duty to establish a federal TMDL within thirty days.
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Id. (quoting S.F. BayKeeper v. Whitman, 297 F.3d 877, 881 (9th Cir. 2002)). The doctrine
generally “applies only where a state ‘clearly and unambiguously’ expresses a decision not to
submit TMDLs.” Id. at 230 (quoting Hayes v. Whitman, 264 F.3d 1017, 1024 (10th Cir. 2001)).
Courts endorsing this doctrine reason “that, without it, states could refuse to promulgate their own
TMDLs and therefore easily frustrate” the Act. Id. at 229–30.
II. The Anacostia River
The Anacostia River, spanning more than 170 square miles, flows from Maryland to the
District of Columbia. NRDC I, 301 F. Supp. 3d at 138. As required by the Act, Maryland and
D.C. “have each established designated uses and water quality standards applicable to their
portions of the Anacostia River.” Id. Both jurisdictions determined that the river was impaired
by trash pollution. See id. Therefore, between 2009 and 2010, they jointly developed a TMDL to
limit the amount of trash in the Anacostia River and submitted it to EPA. See id. at 138–39. In
reviewing the TMDL, EPA acknowledged that “[u]nlike most TMDLs, which are expressed in
positive terms of the loads of a pollutant that may be added to a waterbody,” the joint TMDL was
“expressed in the negative, i.e., in terms of quantities of trash that must be captured, prevented
from entering, or removed from the waterbody.” Id. at 139 (quoting Admin. R. [ECF No. 26] at
3114). EPA nonetheless approved the TMDL on September 21, 2010. Id.
NRDC filed this suit in September 2016, challenging EPA’s approval of the TMDL under
the Administrative Procedure Act (“APA”). See id. at 140. NRDC eventually moved for summary
judgment, arguing that by “set[ting] a minimum amount of trash that must be removed,” instead
of “setting a maximum daily amount of trash that can enter the river,” the TMDL violated the Act’s
requirement that states set a “total maximum daily load” for the river. Id. On March 30, 2018, the
Court agreed and granted NRDC’s motion, concluding that the TMDL did “not establish a
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‘maximum daily load’ within the plain meaning of that phrase.” Id. at 145. The Court therefore
vacated and remanded EPA’s approval of the TMDL, staying vacatur “until such time as the EPA
approves a replacement TMDL.” See id. at 136, 145. But the Court declined to grant NRDC’s
request that a specific deadline be imposed on EPA for the establishment of a new TMDL. See id.
at 145. The Court “le[ft] it to EPA to decide whether to cooperate with [Maryland and D.C.] to
develop a new trash TMDL, . . . or instead to ‘disapprove[]’ the [existing] TMDL and thereby
trigger the agency’s statutory responsibility to establish a federal TMDL within thirty days.” Id.
Rather than disapproving the existing TMDL, EPA opted to cooperate with Maryland and
D.C., giving them primary responsibility for developing the replacement TMDL. See July 2, 2018
Status Report by Def. EPA [ECF No. 31] at 2. EPA has been submitting status reports to the Court
every six months as to the state agencies’ progress in developing the new TMDL, with the most
recent report having been filed on February 19, 2020. 1 See Feb. 19, 2020 Status Report by Def.
EPA [ECF No. 41] at 1.
In January 2020, NRDC filed this motion for the Court to reconsider its 2018 decision and
impose a one-year deadline on EPA to establish a TMDL, contending that the TMDL-development
process was proceeding too slowly and “denying legally mandated protections to the river, the
communities along its banks, and those who come to enjoy it.” Pl.’s Mot. to Set a Deadline for
Final Action on Remand (“Deadline Mot.”) [ECF No. 39] at 1. Partway through briefing, NRDC
served EPA with eight requests for document production and noticed a deposition of an EPA
official who had filed a declaration in support of EPA’s opposition. Nat. Res. Def. Council v. EPA
(“NRDC II”), 2020 WL 2849624, at *1 (D.D.C. June 2, 2020). EPA then moved for a protective
order, arguing that the discovery sought was improper. See id. at *2. The Court denied that motion
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Given the briefing schedule for the present motion, EPA has not been required to file a status report since
February. As noted below, the Court will impose a more frequent status report schedule going forward.
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and permitted NRDC to conduct very limited discovery. See id. at *1. In the course of doing so,
the Court also clarified that Rule 54(b) applies to NRDC’s motion to set a deadline, because that
motion requests that the Court reconsider a nonfinal order. Id. at *2. The motion to set a deadline
is now fully briefed and ripe for decision.
Discussion
I. Legal Standard
Under Rule 54(b), a court may grant relief “as justice requires,” Capitol Sprinkler
Inspection, Inc. v. Guest Servs. Inc., 630 F.3d 217, 227 (D.C. Cir. 2011), which requires
“determining, within the Court’s discretion, whether reconsideration is necessary under the
relevant circumstances,” Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005). To determine
whether “justice requires” reconsideration of a previously issued interlocutory order, a court
considers whether it “patently misunderstood a party[,] . . . has made an error not of reasoning but
of apprehension, or [if] a controlling or significant change in the law or facts [has occurred] since
the submission of the issue to the Court.” Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101
(D.D.C. 2005) (citation omitted). Rule 54(b) motions may properly be granted, for instance, where
the movant presents the court with “new information” justifying reconsideration of a previous
decision. See Doe I v. Exxon Mobil Corp., 2019 WL 2348100, at *3 (D.D.C. June 3, 2019).
“At the same time, a court’s discretion under Rule 54(b) is ‘limited by the law of the case
doctrine and subject to the caveat that where litigants have once battled for the court’s decision,
they should neither be required, nor without good reason permitted, to battle for it again.’” Jordan
v. U.S. Dep’t of Justice, 2019 WL 2028399, at *2 (D.D.C. May 8, 2019) (quoting Singh, 383 F.
Supp. 2d at 101). “The law-of-the-case doctrine dictates that the same issue presented a second
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time in the same case in the same court should lead to the same result,” absent extraordinary
circumstances. Al Bahlul v. United States, 967 F.3d 858, 875 (D.C. Cir. 2020) (quotation omitted).
II. Analysis
NRDC argues that “new information” has come to light that should make the Court
reconsider its prior decision not to impose a deadline on EPA. Prior to conducting its limited
discovery, NRDC could rely for support only on the “new information” of what it called the slow
and “meander[ing]” pace of development. See Deadline Mot. at 1, 3–4. Following discovery,
NRDC now also points to the “inaccurate and unreliable” declaration submitted by an EPA official,
noting that the official’s declaration had previously estimated that the TMDL would be completed
in three to five years, but that the official’s deposition had revealed that she now thinks five to
seven years will be required. See Reply in Supp. of Pl.’s Mot. to Set a Deadline for Final Action
on Remand (“NRDC Reply”) [ECF No. 53] at 2–3, 6.
In EPA’s view, the facts that NRDC has put forth are insufficient to establish that “a
controlling or significant change in the law or facts has occurred since the [original] submission
of the issue to the Court.” Def.’s Sur-Reply Opposing Pl.’s Mot. to Amend the J. & Impose a
Deadline on Remand (“EPA’s Sur-Reply”) [ECF No. 55] at 2–3 (quoting Scahill v. District of
Columbia, 286 F. Supp. 3d 12, 17–18 (D.D.C. 2017)). To the contrary, EPA asserts, “[t]he facts
shown in hundreds of documents, multiple status reports, sworn declarations, and a deposition”
demonstrate that the states and EPA “have been working diligently on remand and have made
steadfast progress over the past two years.” Id. at 1. As a result, EPA argues that the “new
information” that NRDC has presented is insufficient to satisfy Rule 54(b). See id. at 4–5, 9.
Likewise, EPA maintains that NRDC has not adequately justified overriding the law of the case
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on this issue, which is that EPA is permitted to let Maryland and D.C.’s own TMDL-development
process play out. See id.
With some reluctance, the Court agrees with EPA. At summary judgment more than two
years ago, the parties battled over whether the Court should set a deadline for development of a
replacement TMDL. See Pl.’s Mot. for Summ. J. [ECF No. 10] at 15; Def.’s Cross-Mot. for Summ.
J. [ECF No. 15] at 39–40. The Court’s 2018 decision resolved that issue in favor of EPA, declining
to set such a deadline. See NRDC I, 301 F. Supp. 3d at 145. That is the law of the case. And
district courts should “be ‘loathe’ to reconsider issues already decided ‘in the absence of
extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would
work a manifest injustice.’” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc)
(quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)).
The only concrete new fact that NRDC has put forward in support of its motion for
reconsideration of the Court’s 2018 decision is the passage of time—as of the date of this opinion,
about two and a half years since the existing TMDL was vacated. The Court acknowledges and
indeed shares, to some extent, NRDC’s displeasure with the pace of development of the
replacement TMDL thus far. The Court, too, would prefer that a new TMDL be established and
implemented as soon as possible. However, the Court will not now do what the Clean Water Act
does not itself do—establish a firm timeline for the submission of a TMDL by the states to EPA.
It is an unfortunate reality that the development of a TMDL sometimes takes several years, or even
a decade in extreme cases. See Am. Farm Bureau Fed’n, 792 F.3d at 291–92 (noting that
development of a final TMDL for the Chesapeake Bay took ten years); Sierra Club v. McLerran,
2015 WL 1188522, at *3–4 (W.D. Wash. Mar. 16, 2015) (quoting EPA material noting that
development of TMDL for Spokane River took twelve years); Order, Nw. Envt’l Advocates v.
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EPA, Case No. 12-cv-1751 (D. Or. June 11, 2019) (setting four-to-eight year schedule for
development of TMDLs); Anacostia Riverkeeper, Inc. v. Jackson, 713 F. Supp. 2d 50, 55 (D.D.C.
2010) (affording EPA four years to develop new TMDLs); see also Envtl. Law & Policy Ctr. v.
EPA, 415 F. Supp. 3d 775, 778–79 (N.D. Ohio 2019) (“EPA guidance documents suggest that
states should establish TMDLs within 8 to 13 years from the date of the original listing of a
particular waterbody as impaired.” (quotation omitted)); 43 Fed. Reg. 60,662, 60,665 (Dec. 28,
1978) (“EPA recognizes that State development of TMDLs and wasteload allocations for all water
quality limited segments will be a lengthy process.). 2 The Court’s 2018 decision did not require
or suggest that a replacement TMDL be established within a specific timeframe, beyond noting
that EPA was required by the APA to “act diligently.” NRDC I, 301 F. Supp. 3d at 145. The two
and a half years that have elapsed in this case—though undoubtedly an understandable source of
frustration for NRDC—are simply not enough to justify a reconsideration of the Court’s prior
decision.
Nor are NRDC’s attacks on the validity of the EPA official’s declaration availing, because
they largely ignore the fact that EPA is not the entity developing the replacement TMDL—
Maryland and D.C. are, as contemplated under § 1313(d)(1)(C) and the Act’s “cooperative
federalism framework,” see Am. Farm Bureau Fed’n, 792 F.3d at 288. Hence, while EPA has
taken on a coordinative and facilitative function in the TMDL-development process, it cannot itself
dictate how quickly the process proceeds, but instead can provide only estimates based on
information from Maryland and D.C. and the EPA official’s past experience with them. With that
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In fact, even the four-year deadline in Anacostia Riverkeeper that this Court set in 2010 turned out to be
too optimistic. The Court has since extended the deadline to September 30, 2021—a total timeline of nearly eleven
years. See Order [ECF No. 49], Anacostia Riverkeeper, Inc. v. Wheeler, Case No. 09-cv-98, at 1–3.
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in mind, NRDC’s criticisms of the official’s declaration do not persuade the Court to reconsider
its 2018 decision.
For instance, one of NRDC’s main criticisms is that the official’s original estimate of three
to five years, which her deposition revealed was based on “her observations of how long it has
[previously] taken the [state agencies] to complete various TMDL development tasks,” has now
increased to five to seven years. See NRDC Reply at 2–4. As she stated at her deposition, the
official came to her new estimate after “[w]riting out the steps that would—the substeps, really,
that would be needed” under the first step of the development timeline. Ex. 1, NRDC Reply [ECF
No. 53-1] at 18–19. That consists primarily of developing, designing, implementing, and
analyzing the results of a public survey. See id. at 20. The Court shares NRDC’s concerns about
the process that led to the apparently inaccurate estimate in the official’s original declaration. An
estimate it may have been, but presumably EPA intended for that estimate to be helpful to the
Court. The Court would expect that something as simple as writing out the substeps of each step
of an estimate would have been done prior to the submission of a sworn declaration to the Court.
Still, whatever the deficiencies in EPA’s estimation process that led to a two-year increase
between the submission of the official’s declaration on February 28 and her deposition on June 30,
the fact remains that Maryland and D.C. have the leading role in developing the replacement
TMDL. As EPA points out, “the States are developing the replacement TMDLs through their
respective State programs and administrative processes.” EPA Sur-Reply at 13. Thus, uncertainty
on EPA’s part as to how long the TMDL-development process will take does not constitute “a
controlling or significant change in the law or facts . . . since the submission of the issue to the
Court.” Singh, 383 F. Supp. 2d at 101. Indeed, the Court specifically contemplated that EPA
might take a backseat to Maryland and D.C. in developing the replacement TMDL in its 2018
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decision. See NRDC I, 301 F. Supp. 3d at 145. For better or worse, EPA has done just that here.
That fact, then, does not justify the Court’s changing its decision.
NRDC also cites, in passing, a few cases applying the constructive submission doctrine.
But those cases don’t help NRDC’s cause, either. As recently stated by the Ninth Circuit, that
doctrine applies “where a state has fail[ed] over a long period of time to submit a TMDL and
clearly and unambiguously decided not to submit any TMDL[s].” Columbia Riverkeeper v.
Wheeler, 944 F.3d 1204, 1209 (9th Cir. 2019) (internal quotation marks omitted). That is not the
situation here. Maryland and D.C. previously submitted the existing (deficient) TMDL, which
remains in effect today because of the Court’s stay of vacatur. They have not failed to submit any
TMDLs. See Hayes, 264 F.3d at 1022, 1024 (concluding that because Oklahoma had submitted
“at least a small number” of TMDLs, the constructive submission doctrine did not apply).
Moreover, Maryland and D.C. have not “clearly and unambiguously decided” not to submit
a TMDL. Even leaving aside the TMDL the states already submitted, EPA has put forth substantial
documentation demonstrating that Maryland and D.C. have been reaching out to stakeholders,
analyzing data, soliciting advice from authorities in other regions of the country, and working to
settle on a final approach for the TMDL. See EPA’s Sur-Reply at 5–8; see generally Ex. A, EPA’s
Sur-Reply [ECF No. 55-2] (documentation of EPA’s and the states’ efforts). EPA therefore does
not rely only, as NRDC suggests, on the EPA official’s “declaration as proof that the Agencies are
working hard.” NRDC Reply at 6. NRDC has not identified any evidence suggesting that
Maryland and D.C. have decided not to submit a TMDL. Thus, far from “clearly and
unambiguously express[ing] a decision not to submit [a] TMDL,” Ohio Valley Envtl. Coal., 893
F.3d at 229, Maryland and D.C. have demonstrated progress toward establishing one—even if that
progress is slower (perhaps much slower) than NRDC and the Court would like. See Anacostia
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Riverkeeper, Inc., 713 F. Supp. 2d at 54 (“[W]here an agency justifies its conclusions with
evidence, courts should not substitute their own predictions about the length of time an agency
needs to evaluate data . . . , especially where those predictions turn on scientific matters.”).
For all these reasons, the Court concludes that NRDC has failed to present adequate “new
information” demonstrating a “controlling or significant change in the law or facts” since the
Court’s 2018 decision, as required for reconsideration under Rule 54(b), nor has it established
“extraordinary circumstances,” as required to override the law-of-the-case doctrine. Still, the
Court continues to urge EPA, Maryland, and D.C. to develop a TMDL “diligently” and as quickly
as possible, consistent with the scientific method and practical standards. See NRDC I, 301 F.
Supp. 3d at 145. Furthermore, EPA should be on notice that the Court does not foresee permitting
this process to drag on interminably, and may at some point in the not-too-distant future look more
favorably upon a motion like this one. At least for now, however, the Court will not reconsider its
2018 decision not to impose a deadline. But it will require increased reporting in order to monitor
the continuing progress the Court expects.
Conclusion
For the foregoing reasons, the Court will deny NRDC’s motion to set a deadline for final
action on remand. The Court will also require EPA to submit detailed status reports every three
months going forward, with the first report due not later than October 15, 2020. A separate order
will be issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: September 21, 2020
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