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Pine Creek Valley Watershed Assoc. v. United States Environmental Protection Agency

United States District Court, E.D. Pennsylvania

March 17, 2015

THE PINE CREEK VALLEY WATERSHED ASSOC., RAYMOND PROFFITT FOUNDATION, THE DELAWARE RIVERKEEPER NETWORK, and THE DELAWARE RIVERKEEPER C/O JOHN WILMER, ESQ., Plaintiffs,
v.
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, GINA MCCARTHY, Administrator, and SHAWN GAVIN, Region III Administrator, Defendants

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[Copyrighted Material Omitted]

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For THE PINE CREEK VALLEY WATERSHED ASSOC., RAYMOND PROFFITT FOUNDATION, Plaintiffs: JOHN W. WILMER, LEAD ATTORNEY, MEDIA, PA.

For THE DELAWARE RIVERKEEPER NETWORK, THE DELAWARE RIVERKEEPER C/O JOHN WILMER, ESQ., Plaintiffs: JOHN W. WILMER, LEAD ATTORNEY, MEDIA, PA; NICHOLAS B. PATTON, LEAD ATTORNEY, PRO HAC VICE, DELAWARE RIVERKEEPER NETWORK, BRISTOL, PA.

For THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, GINA MCCARTHY, ADMINISTRATOR, SHAWN GAVIN, REGION III ADMINISTRATOR, Defendants: AUSTIN DAVID SAYLOR, LEAD ATTORNEY, AMANDA SHAFER BERMAN, LAURA JANE BROWN, U.S. DEPT OF JUSTICE, WASHINGTON, DC.

For THE NATIONAL ASSOCIATION OF HOME BUILDERS, THE PENNSYLVANIA BUILDERS ASSOCIATION, Intervenors: KIMBERLY L. RUSSELL, LEAD ATTORNEY, KAPLIN STEWART MELOFF REITER ¶ STEIN, BLUE BELL, PA.

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MEMORANDUM OPINION

EDWARD G. SMITH, J.

On July 2, 2013, Pennsylvania passed Act 41,[1] a legislative enactment that amended the Pennsylvania Sewage Facilities Act (" Sewage Facilities Act" ), 35 Pa. C.S. § § 750.1-750.20a. Act 41 allows the use of certain on-lot sewage systems to satisfy the state's antidegradation requirements if the design and approval of those systems comport with the Sewage Facilities Act. Due to their view that Act 41 works an end-run around antidegradation review, and therefore changes existing water quality standards, the plaintiffs seek to compel the Environmental Protection Agency (" EPA" ) to, at a minimum, review Act 41 for compliance with the Clean Water Act (" CWA" ), 33 U.S.C. § § 1251-1388. But because the citizen-suit provision under the CWA grants district courts subject-matter jurisdiction to order the EPA to perform only non-discretionary acts or duties, the plaintiffs can invoke the power of this court only if the EPA has a mandatory duty to review Act 41 under the CWA. This case, then, turns on whether such a duty can be found within the bounds of the CWA.

Ultimately, this jurisdictionally-dispositive inquiry presents a relatively straightforward Chevron problem that rises and falls on implementing congressional intent. Relevant here, the court focuses on congressional intent as embodied in the statutory

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provision detailing the EPA's duty to review revised or new water quality standards. For if the text of the CWA is clear that Act 41 constitutes a revised or new water quality standard, the court has jurisdiction to order the EPA to act. If the converse is clear, jurisdiction is lacking. If, however, the statutory provision is ambiguous, the characterization of Act 41 must be answered by the EPA, as the administering agency, to the extent that it reasonably brings its authority to bear on that precise issue.

In the end, the statutory text does not clearly address the precise question presented and so the court defers to relevant EPA regulations as permissible constructions of the CWA. Because the regulations unambiguously preclude the conclusion that Act 41 constitutes a water quality standard, they likewise foreclose the result that Act 41 constitutes a revised or new water quality standard capable of triggering the jurisdictionally-required mandatory duty to act. The court, therefore, lacks jurisdiction over the CWA claim and dismisses it without prejudice. The court also dismisses the ancillary claim under the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706, on the merits.

I. PROCEDURAL HISTORY

On March 12, 2014, the plaintiffs, the Pine Creek Valley Watershed Association, the Raymond Proffitt Foundation, the Delaware Riverkeeper Network, and the Delaware Riverkeeper, filed a complaint against the defendants, the United States Environmental Protection Agency, Gina McCarthy as the Administrator of the EPA, and Shawn Gavin as the Regional Administrator of EPA Region III. Compl., Doc. No. 1. In the complaint, the plaintiffs seek an order compelling the EPA to review, and ultimately to reject, Act 41 as a revised or new water quality standard that runs afoul of the CWA. Id. at ¶ ¶ 2, 57, 60. The plaintiffs further seek an order compelling the EPA to " promptly prepare and publish regulations denying Pennsylvania's disputed revised water quality standards." Id. at ¶ 62. To pursue these remedies, the plaintiffs invoke two rights of action: the citizen-suit provision of the CWA, 33 U.S.C. § 1365(a)(2), and the right of action created by the APA, 5 U.S.C. § § 702, 704. Id. at ¶ 1.

Taking issue with the CWA claim on jurisdictional grounds and the APA claim on merits grounds, the defendants filed a motion to dismiss on July 14, 2014. Mot. to Dismiss, Doc. No. 16. The plaintiffs filed a timely opposition to the motion. Pls.' Resp. to Defs.' Mot. to Dismiss, Doc. No. 19. The defendants filed a reply in support of the motion on August 21, 2014. Reply in Supp. of Mot. to Dismiss Pls.' Compl., Doc. No. 24.

The court held an initial pretrial conference on September 2, 2014. At the conference, the parties confirmed that the facts were not in dispute and that the case presented uniquely legal issues. Order, Doc. No. 28. Accordingly, the court gave the parties an opportunity to create a record through stipulated facts. Id. Further, the court allowed the parties to supplement their respective positions concerning the motion to dismiss and invited them to file cross-motions for summary judgment. Id. The parties eventually filed supplementary briefing with respect to the motion to dismiss, cross-motions for summary judgment, and respective responses to the cross-motions. See Doc. Nos. 32-34, 36, 38, 39-41.

A slight procedural twist developed relatively early on in the litigation. About the time that the defendants filed the motion to dismiss, the National Association of Homebuilders filed a motion to intervene pursuant to Federal Rule of Civil Procedure 24. The Nat'l Ass'n of Homebuilders'

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Mot. to Intervene Pursuant to Fed.R.Civ.P. 24, Doc. No. 17. Approximately one month later, the Pennsylvania Builders Association filed a motion to intervene that expressed a desire to unite with the position taken by the National Association of Homebuilders, including adopting the arguments contained in its prior motion to intervene.[2] The Pennsylvania Builders Ass'n's Mot. to Intervene Pursuant to Fed.R.Civ.P. 24, Doc. No. 23. The plaintiffs filed oppositions to both motions to intervene. See Doc. Nos. 20, 25. The court granted both motions after the initial pretrial conference. Order, Doc. No. 28. In turn, the Intervenors filed an answer to the complaint, a motion for summary judgment, and a response in opposition to the plaintiffs' motion for summary judgment. See Doc. Nos. 31, 35, 37.

With all relevant submissions filed by the original parties and intervenors alike, the court held oral argument on November 12, 2014. The outstanding motions are thus ripe for disposition.

II. DISCUSSION

A. Standard of Review

Given the posture of the case, three standards of review are theoretically applicable: (1) the standard of review under Federal Rule of Civil Procedure 12(b)(1); (2) the standard of review under Federal Rule of Civil Procedure 12(b)(6); and (3) the standard of review under Federal Rule of Civil Procedure 56. The court recites the standards only under Rule 12, however, because they are outcome-determinative.

" A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citation omitted). " In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Id. at 176 (citations and footnote omitted). In other words, the court accepts " all well-pleaded allegations in the complaint as true and view[s] them in the light most favorable to the plaintiff." In re Kaiser Grp. Int'l Inc., 399 F.3d 558, 561 (3d Cir. 2005) (citation omitted). In reviewing a factual attack, on the other hand, " a court may weigh and consider evidence outside the pleadings." Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (internal quotation marks and citation omitted). Here, the court construes the instant challenge as a facial one, noting that the parties have agreed that this matter presents solely questions of law.

A motion to dismiss under Rule 12(b)(6) tests " the sufficiency of the allegations contained in the complaint" and places the burden on the defendant to show that no claim has been presented. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted); see Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted). In reviewing such a motion, the court accepts all well-pleaded facts in the complaint as true and construes them in a " light most favorable to the plaintiff[s]." Santomenno v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d 284, 290 (3d Cir. 2014) (internal quotation marks and citation omitted). Viewing the facts in this manner, the court must ultimately determine whether the complaint " contain[s] sufficient factual matter . . . to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted).

With respect to the CWA claim, the court is mindful that there is significant, if not identical, overlap between the jurisdictional inquiry and any merits inquiry. See, e.g., Miccosukee Tribe of Indians of Fl. v. United States, EPA, 105 F.3d 599, 603 (11th Cir. 1997) (noting that " the jurisdictional question is intertwined with the merits" in a similar CWA suit). In principle, this overlap is important because the Third Circuit has stated that " Rule 12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the truth of the plaintiff's allegations." CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008). Thus, one may read Third Circuit language to the effect that courts may address jurisdictional questions that are bound up with the merits only if they apply " a relaxed standard of proof for the jurisdictional question." S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 344, 56 V.I. 901 (3d Cir. 2012) (citation and footnote omitted). The court need not seriously grapple with that language in this case, however, because it is applicable only when a court is facing a factual challenge to subject-matter jurisdiction. See id. at 343-44 (discussing the relaxed standard when the jurisdictional inquiry turns on a factual dispute). When, as here, the court is presented with a facial attack, the concern over any procedural disparity between Rule 12(b)(1) and Rule 12(b)(6) vanishes as " the standard is the same when considering a facial attack under Rule 12(b)(1) or a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Petruska v. Gannon Univ., 462 F.3d 294, 299 n.1 (3d Cir. 2006) (citation omitted). Therefore, and despite the court agreeing with the parties that this case turns purely on questions of law, the court proceeds to the jurisdictional inquiry recognizing that the plaintiffs are procedurally protected should factual allegations somehow become relevant.

B. General Principles of Administrative Law

This is a case about statutory construction and agency deference. The doctrine set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) therefore governs its resolution.

Chevron is rooted in a background presumption of congressional intent: namely, that Congress, when it left ambiguity in a statute administered by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency.

City of Arlington, Texas v. FCC, 133 S.Ct. 1863, 1868, 185 L.Ed.2d 941 (2013) (internal quotation marks and citations omitted). This framework is often invoked, so much so that the Supreme Court " routinely accord[s] dispositive effect to an agency's reasonable interpretation of ambiguous statutory language." EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584, 1603, 188 L.Ed.2d 775 (2014) (emphasis added). EPA regulations, in particular, regularly receive Chevron deference when appropriate. See Utility Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 2439, 189 L.Ed.2d 372 (2014) (observing that

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" [w]e review EPA's interpretations of the Clean Air Act using the standard set forth in" Chevron ); PUD No. 1 of Jefferson Cnty. v. Washington Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (according Chevron deference to EPA regulation 40 C.F.R. § 121.2(a)(3) (1993)); Chevron, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (deferring to an EPA regulation interpreting the Clean Air Act); see also Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (announcing that " the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation" ).

Chevron is expressed through a " now-canonical formulation." City of Arlington, 133 S.Ct. at 1868. " When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions." Chevron, 467 U.S. at 842.

First, applying the ordinary tools of statutory construction, the court must determine whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, ...

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