Judges for the 9th U.S. Circuit Court of Appeals had plenty of questions for an Environmental Protection Agency attorney arguing to overturn a lower court decision requiring EPA to make plans for resolving water temperature problems in the lower Snake and Columbia rivers.
“The bottom line, for purposes of this case, is: No date, no deadline, no duty,” U.S. Department of Justice attorney Jonathan Brightbill told the panel of three judges in his opening remarks Aug. 26.
EPA is asking the court to overturn an October ruling in Columbia Riverkeeper et al. v. Scott Pruitt et al. that gave the EPA 60 days to issue the total maximum daily loads for temperature. The panel, comprised of judges Michael Hawkins, Margaret McKeown and Jay Bybee, has not yet ruled following the oral arguments at a hearing in Seattle.
Brightbill attempted to convince the court that provisions in the Clean Water Act used as the basis to require EPA action do not include specific dates or deadlines, and therefore cannot be used to mandate EPA action.
Under the Clean Water Act, states are required to issue TMDLs for a variety of pollutants in impaired waterways, including temperature. The EPA then reviews them and, under the act, has 30 days to approve or reject them.
Prior court rulings have also given EPA the duty of issuing TMDLs when states fail to act. That mandate for EPA to act is known as the theory of constructive submission. Several of the judges’ questions involved whether the theory applies in this case, and whether a 2002 ruling in the 9th Circuit—San Francisco Baykeeper v. Whitman—adopting the theory binds them to the same decision.
In arguing to uphold the district court ruling, Riverkeeper attorney Bryan Hurlbutt said the 7th, 9th and 10th circuit courts have adopted the theory in their rulings, and that the 4th Circuit signaled it was likely to, but found that the State of West Virginia had a plan and a deadline for issuing the TMDLs in question. “The EPA cannot point to a single case rejecting the constructive submission doctrine,” he told the judges.
However, Brightbill, in arguing that without a certain date or specific deadline there is no duty to take action, pointed to other cases and rulings concerning Clean Water Act provisions.
“In the absence of a readily ascertainable deadline, it would be almost impossible to conclude that Congress accords a particular agency such a high priority as to impose on the agency a categorical mandate,” he said, quoting a U.S. Court of Appeals for the D.C. Circuit case.
And, Brightbill said, another case heard by the 9th Circuit rejected a claim that EPA had a nondiscretionary duty to act, despite a different provision of the Clean Water Act that he claimed was “a far stronger candidate for mandatory duty.”
Under questioning from Bybee, Brightbill detailed the work completed so far on the Snake and Columbia TMDLs for river temperature.
“What EPA has done now is they have prepared an updated model and other technical documents relating to the development of the TMDL," he replied. "They’ve had that information peer-reviewed by outside sources. They’ve also shared it with the federal, state and tribal authorities and received comments on those technical materials, your honors. They’ve also drafted many portions of the TMDL at this point, but there are key details, of course, that rely upon those technical documents and the finalization of those technical documents that remain to be resolved, your honors."
Bybee continued to press the attorney on EPA’s plans. “Is EPA going to issue it? Or are they going to say, ‘Now we’ve got this good draft,’ and ship it to Oregon and Washington, and then say, ‘You guys can issue it and we’ll approve it because we’ve previously seen it?’”
Brightbill responded, “I don’t think EPA has finalized that determination, your honor, but frankly, it isn’t terribly relevant to the question of whether EPA has a mandatory duty to act in the event of the state not actually having taken an action yet.”
He also pointed to several other parts of the Clean Water Act where the agency clearly has a duty to act if a state fails to act, but noted that the provision regarding issuing of TMDLs does not include language requiring the EPA to act.
He concluded by arguing that prior circuit court decisions embracing the theory of constructive submission recognize a deadline reflected in the Clean Water Act.
“But no court of appeals has ever permitted what this district court did here, which is to begin imposing a mandatory duty and begin examining the intent of states as to whether they have a desire or lack of desire to abandon a TMDL, and then abandon that TMDL; and looked at the intent of EPA and whether EPA—under the guise of a mandatory duty—has really unreasonably delayed in responding to a non-mandatory state action,” he said.
In arguing that EPA has a duty to act, Riverkeeper's Hurlbutt talked about the consequences to the Snake and Columbia rivers, which were deemed impaired in 1998 due to temperatures harmful to salmon and steelhead. “It’s only gotten worse since then, and in 2015, the river recorded the highest temperatures in modern times, which led to serious trouble with fish trying to migrate up and down the river. For endangered Snake River sockeye salmon, only 4 percent made it up the main-stem river to return to their spawning grounds, whereas typically, in recent years somewhere around 44 to 77 percent have made it.”
Hurlbutt said that in the early 2000s, Washington, Oregon and the EPA had a plan to work on the temperature standards, and in 2003, EPA issued a draft TMDL but suspended work on it by the end of the year. “There’s still no TMDL in place, and EPA can’t point to any deadline by which it’s ever going to be done, or who’s going to do it,” he said.
Hurlbutt said that although the Clean Water Act does not provide clear language about what happens if states fail to submit a TMDL, courts have ruled that EPA is expected to step in. “Failure over some prolonged period to issue a TMDL is essentially the same as submitting an inadequate TMDL, and if that weren’t the case, it would undermine the Clean Water Act, and that’s why courts have consistently followed the constructive submission doctrine,” he said.
He agreed that states ultimately have the obligation to submit a TMDL, but if they don’t, that obligation falls to the EPA. “There’s nothing wrong with the state relying on the EPA to do the TMDL for it,” he said, but in this case, EPA has failed to act. “EPA can’t give you a date as to when they’re doing it. They were unable to tell you whether they or the states would be issuing the TMDL, and all they’ve done is mention things that they said were not in the record that EPA is doing.”
He said judges can find that the states have abdicated their duty to issue TMDLs for temperature in this case because there has been a prolonged failure to issue a TMDL, and there’s no plan in place to correct that failure.
Finally, Hurlbutt argued, the court is bound by a prior 9th Circuit decision that adopted EPA’s duty to issue TMDLs under the constructive submission doctrine.
“EPA is trying to add additional requirement as to what’s binding,” he said. “The  Baykeeper decision is binding here. This court gave it reason, consideration, and decided the issue, and that’s all that’s required to create binding law.”
The judges gave no indication when they may rule on the case.