Case Summaries


I. ENVIRONMENTAL QUALITY

A. Clean Water Act

1. Southern California Alliance of Publicly Owned Treatment Works v. U.S. Environmental Protection Agency, 853 F.3d 1076 (9th Cir. 2017).

The Southern California Alliance of Publicly Owned Treatment Works (SCAP) petitioned the United States Court of Appeals for the Ninth Circuit for review under the Clean Water Act (CWA). (1) SCAP argued that the Ninth Circuit had original jurisdiction to review an United States Environmental Protection Agency (EPA) letter that objected to draft permits for water reclamation plants in Los Angeles. The Ninth Circuit, reviewing the issue de novo, dismissed the petition.

California Regional Boards make the initial permitting decisions regarding the National Permit Discharge Elimination System (NPDES). (2) The Los Angeles Regional Board prepared and submitted draft NPDES permits for the water reclamation plants at issue to EPA for review. EPA responded to the draft permits with a formal objection letter. The Board, in response to the letter, revised the draft permit to satisfy EPA objections. The Board then proceeded to issue the revised permits for the water treatment plants. SCAP filed an administrative appeal of the Board's action. SCAP also filed the petition for review.

The initial issue was whether the Ninth Circuit had jurisdiction to review the letter. The CWA provides for judicial review of agency decisions under certain circumstances. (3) Here, SCAP made two separate arguments for jurisdiction. SCAP argued that the letter provided the court jurisdiction under the section of the CWA that provides for federal appellate review of EPA actions approving or promulgating effluent limitations. (4) The court declined jurisdiction on these grounds for three reasons. First, as EPA noted in its argument, the Ninth Circuit already resolved this question in Crown Simpson Pulp Co. v. Costle (Crown I). (5) Crown /had rejected the proposal that an EPA veto of permits equals the promulgation of a new regulation. The court rejected SCAP's use of Iowa League of Cities v. Environmental Protection Agency (6) because factual differences made the analogy inapposite. In Iowa League of Cities, EPA responded to a general inquiry about the agency's policy. Here, however, EPA objected to a specific permit. The permit objection was an interim step, rather than a final binding order. In addition, the court reasoned that California, or the Los Angeles Board, could impose stricter restrictions on the treatment plants. If that occurred, EPA's objection letter would be irrelevant and moot.

Second, SCAP argued that the objection letter was subject to jurisdiction under subpart F, (7) which provides for review of EPA actions that issue or deny any permit under the NPDES program. SCAP argued that EPA's objection letter denied the permits. SCAP cited Crown Simpson Pulp Co. v. Costle (Crown II), (8) which held that an EPA objection to effluent limitations in a permit effectively was a denial of the permit. (9) EPA countered that Crown II was not applicable to this issue because Congress subsequently amended the CWA and revised the procedures relating to that very issue. The Ninth Circuit agreed that the amendments changed the CWA and found that under the current statute, an EPA objection is no longer functionally similar to denying a permit. Complaints about the objection letter are therefore premature. The court held that the objection letter did not constitute an issuance or denial of the draft permits at issue.

In sum, the Ninth Circuit found that SCAP's claims under the CWA lacked jurisdiction because the objection letter was neither an approval nor promulgation of a new rule nor an outright denial of the permit at issue in this case. Accordingly, the court denied the petition.

2. United States v. Robertson, 875 F.3d 1281 (9th Cir. 2017).

This action came as an appeal from a criminal conviction related to the extent of the government's jurisdiction to police United States waters under the Clean Water Act (CWA). …

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