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Coal Update

Sierra Club Moves Efforts to Rescind WV and KY State NPDES Programs to Fourth and Sixth Circuits

July 22, 2015

By: Robert G. McLusky

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 advanced alternative claims.  First, they alleged that EPA’s own rules require that it respond “in writing” to petitions to withdraw NPDES program approval.  It contended that this “non-discretionary” duty is enforceable under the citizen suit provision of the Clean Water Act (“CWA”).  Second, and alternatively, the complaints contended 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 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 CWA claim to enforce a non-discretionary duty, EPA claimed that only its rules, and not the CWA itself, establish a duty to respond in writing.  It claimed further that regulatory obligations, as opposed to statutory ones, are not enforceable under the citizen suit provision.  EPA also contended that even if its rule might otherwise be enforceable in a citizen suit, the applicable 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.

In response, the Sierra Club acknowledged it was unclear whether its cases must be filed originally in the circuit courts, but agreed to do so.  In Kentucky, it voluntarily dismissed its district court action without prejudice.  Subsequently, on July 20, it filed an original action in the Sixth Circuit.  In West Virginia, the Sierra Club refused to dismiss its case, arguing that the district court action should be stayed pending an action in the Fourth Circuit. 

By order of June 19, 2015, Judge Robert C. Chambers granted EPA’s motion to dismiss the first count of the complaint, ruling that EPA has no non-discretionary duty to act on the Sierra Club’s petition.  He denied the motion to dismiss the second count and granted the Sierra Club’s motion to stay that claim provided the Sierra Club file an original action in the Fourth Circuit within 30 days.  On July 20, the Sierra Club filed its action in the Fourth Circuit.

Why did the Sierra Club agree to dismiss its district court action in Kentucky, but not in West Virginia?  It did not say, but the most likely answer is that it was judge shopping.  In Kentucky, its district court case was assigned to Judge Van Tatenhove, who previously ruled against the Sierra Club on the “permit shield” issue in a Clean Water Act citizen suit.  By dismissing the case, if the Sixth Circuit rules that the case must be litigated in district court, the Sierra Club can re-file its complaint and may be assigned a different judge.  In West Virginia, the Sierra Club likely did not dismiss its case so that it could retain Judge Chambers, who has repeatedly ruled in its favor in Clean Water Act cases.

This article was authored by Robert G. McLusky.

 

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