Streamlining EPA's NPDES Permit Program with Administrative Summary Judgment: Puerto Rico Aqueduct & Sewer Authority V. Environmental Protection Agency
Turner, R. Cammon, Environmental Law
Nearly forty years ago, Professor Kenneth C. Davis declared: "Some agencies might well take a leaf from the federal rules of civil procedure and permit summary judgment without evidence when no issue of fact is presented."(1) Several federal agencies have followed this advice by incorporating summary disposition provisions into their regulatory schemes.(2) Under such provisions, an agency may refuse to hold an evidentiary hearing when an applicant is unable to establish a substantial factual or legal dispute in its request for an evidentiary hearing. Similarly, if an evidentiary hearing is granted, an agency may summarily dispose of a particular claim or defense when a party fails to advance an issue worthy of full adjudication. Both applications effectively resolve disputes without expending valuable agency resources or infringing on a party's statutory right to a hearing.
The Environmental Protection Agency (EPA) has promulgated rules adopting both summary determination procedures.(3) Although EPA's use of administrative summary judgment following the granting of a hearing has received little attention,(4) its use to deny a hearing request has been the subject of two First Circuit cases(5) and numerous agency adjudications.(6) This Note focuses on the latter use of the device. Both the First Circuit and EPA look to Federal Ride of Civil Procedure 56 and relevant case law to determine when administrative summary judgment is appropriate.(7) This approach provides both adjudicators and private parties meaningful guidance as to when an evidentiary hearing is necessary to resolve disputes over National Pollutant Discharge Elimination System (NPDES) permits.(8)
Despite rigorous analysis of administrative summary judgment's general tenets, EPA and the First Circuit have glossed over many fine points. This Note addresses potential problems and recommends continued and expanded use of administrative summary judgment when a hearing requester cannot show that an evidentiary hearing would be meaningful. Part II briefly describes the federal summary judgment rule and analyzes the development of administrative summary judgment by various federal agencies. Part III outlines the Clean Water Act(9) and the implementing regulations that provide for administrative summary judgment.(10) Finally, part IV examines additional considerations in applying the federal summary judgment standard in the administrative hearing context.
II. The Judicial and Administrative Summary Judgment Rules
A. Federal Summary Judgment Rule
In applying administrative summary judgment, many federal administrative agencies look to Federal Rule of Civil Procedure 56 (Rule 56) for guidance.(11) The federal summary judgment rule is intended "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."(12) The basis for granting summary judgment is the lack of a disputed issue requiring evidentiary review for resolution.(13) According to Ride 56, a party's motion for summary judgment shall be granted if there is no genuine issue as to any material fact, and the moving party is "entitled to a judgment as a matter of law."(14) If there is a genuine issue as to any material fact, the motion must be denied.(15) A plaintiff or defendant may make a motion for summary judgment with or without supporting affidavits.(16) Although Rule 56 does not expressly provide for a court-initiated grant of summary judgment, it is within the court's power.(17)
Summary judgment, when properly applied, yields increased judicial efficacy and economy.(18) Litigants are spared the necessity of preparing for and executing a full-dress trial.(19) The court is able to reduce its docket and to allocate time and resources efficiently.(20) Even if a motion for summary judgment is denied, the process defines and limits the issues that are eventually litigated.(21)
The decision to grant or deny a motion for summary judgment requires analysis of three, often interrelated, matters: 1) whether the issue is purely legal or factual, or somewhere in between; 2) whether resolution of a specific issue will affect the final outcome of the adjudication; and 3) if questions of fact are involved, whether a reasonable trier of fact could find for the nonmoving party. …