The Sierra Club and its local partners previously petitioned EPA to withdraw its approval of the NPDES programs in at least Kentucky, Virginia and West Virginia—largely over alleged deficiencies by the state agencies in handling coal-related permits. Earlier this year, when EPA did not formally respond to the petitions, the Sierra Club sued EPA in federal courts in Kentucky and West Virginia.
In those suits, the Sierra Club claimed that it is owed a substantive written response—presumably one that it can challenge if EPA does not withdraw approval of the state NPDES programs. The complaints advance alternative claims. First, they allege that EPA’s own rules require that it respond “in writing” to petitions to withdraw NPDES program approval. The Sierra Club contends that this “non-discretionary” duty is enforceable under the citizen suit provision of the Clean Water Act (“CWA”). Second, and alternatively, the complaints contend that EPA’s failure to respond to the petitions in writing constitutes an unreasonable failure to act that is reviewable under the Federal Administrative Procedures Act (“APA”).
EPA has now moved to dismiss both cases. See Ohio Valley Environmental Coalition, et al. v. McCarthy, et al.,No. 3:15-cv-000277 (S.D. W.Va.) and Kentuckians for the Commonwealth v. McCarthy, No. 3:15-cv-00004 (E.D. Ky.). Its motions to dismiss address both the CWA and APA claims. As to the claim to enforce a non-discretionary duty, EPA says that only its rules, and not the CWA itself, establish a duty to respond in writing. It claims further that regulatory obligations, as opposed to statutory ones, are not enforceable under the citizen suit provision. EPA also contends that even if a rule might otherwise be enforceable in a citizen suit, this rule provides no deadline for EPA’s response and, therefore, imposes no enforceable duty.
As to the APA claim, the EPA says that it must be filed directly in either the Fourth or Sixth Circuit (which include, respectively, West Virginia and Kentucky) because only the Circuit Courts have jurisdiction over the underlying efforts to withdraw state NPDES programs.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC.