Challenging EPA’s administration of the Clean Water Act for failure to consider climate impacts

Environmental interests have seemingly embarked on a new campaign to challenge the EPA’s administration of the Clean Water Act (CWA) for failure to consider the impacts of climate change.  In some instances, they have opposed consent decrees that EPA has proposed to resolve violations associated with combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs).  In others, they have challenged EPA’s approval of Total Maximum Daily Loads (TMDLs).  In this post, I discuss a handful of these efforts and assess the wisdom of this particular strategy.

The CSO and SSO Consent Decree Challenges

In United States v. Metro. Water Reclamation Dist. of Greater Chi., No. 11 C 8859 (N.D. Ill.), several intervening environmental organizations opposed the entry of a consent decree proposed by EPA (and Illinois) to resolve alleged violations relating to the Metropolitan Water Reclamation District of Greater Chicago’s CSOs.  The proposed consent decree required the district, among other things, to complete a major system of tunnels and reservoirs, known as TARP, designed to prevent CSOs.  In their response in opposition to entry of the proposed consent decree, a couple of the environmental organizations asserted that “TARP’s capacity will be too small to prevent CSOs” and argued that “EPA’s decision to use just 2006 precipitation events to analyze TARP’s capacity, instead of studying . . . more intense storms, or rapidly recurring storms, is inconsistent” with EPA’s documented strategy of “promoting the consideration of climate change impacts within its CWA NPDES permitting program.”  As reported in an earlier blog post, these arguments ultimately failed to carry the day.

In United States v. Miami-Dade County, No. 1:12-cv-24400 (S.D. Fla.), the Biscayne Bay Waterkeeper (BBW) is opposing the entry of a consent decree proposed by EPA (and Florida) to resolve Miami-Dade County’s alleged SSO violations.  Under the proposed consent decree, the county agreed, among other things, to invest in major upgrades to its wastewater treatment plants and collection and transmission systems in order to eliminate SSOs.  BBW is opposing the entry of the consent decree on a number of grounds, including EPA’s failure to account for climate impacts.  In its response in opposition to a motion to enter the consent decree, BBW asserts that the “proposed Decree should require the County to evaluate now known and expected impacts of climate change including sea level rise, storm surge, and flooding and account for such impacts as part of the Decree’s implementation.”  BBW argues that the failure to do so jeopardizes the large capital investments contemplated by the agreement.  The motion to enter the consent decree is still pending.

The TMDL Challenges

In Conservation Law Found. v. EPA, No. 2:08-cv-00238 (D. Vt.), the Conservation Law Foundation (CLF) filed an action challenging EPA’s approval of a TMDL prepared by Vermont seeking to address phosphorus pollution in Lake Champlain.  Along with other objections, CLF alleged that the TMDL

“unlawfully failed to analyze water resources impacts associated with documented and predicted climate change in so far as such changes were highly relevant to, among other things, the establishment of WLAs [(wasteload allocations)], LAs [(load allocations)], the overall loading capacity, seasonal variation analysis, critical condition analysis, and establishment of the margin of safety.”

During the course of the litigation, CLF entered into a settlement agreement with EPA that ultimately resulted in EPA reconsidering, withdrawing its approval of, and disapproving the TMDL.  EPA is currently collaborating with Vermont to prepare a new TMDL, which, if recent comments by EPA on a draft state proposal are to be taken seriously, will have to better account for climate change.

Presumably hoping to build off of its success in Vermont, CLF took its strategy south.  In Conservation Law Found. v. EPA, No. 10-11455 (D. Mass.), CLF filed an action challenging EPA’s approval of TMDLs prepared by Massachusetts to address nitrogen pollution in various embayments located on Cape Cod and Nantucket.  Once again, CLF pointed to EPA’s failure to analyze climate change in approving the TMDLs as a basis for challenging the agency action.  If CLF was hoping for another settlement like the one reached in Vermont, however, it doesn’t appear that EPA was interested in playing ball.  Instead, the agency filed a motion for summary judgment arguing, among other things, that CLF lacked standing to litigate its claims.  Late last summer, the court agreed with EPA and entered judgment for the agency (see Mem. and Order dated Aug. 29, 2013).  Undeterred, CLF initiated a new action just two months later, presumably attempting to cure the defects that the court identified in its original action.  In its new complaint in Conservation Law Found. v. EPA, No 13-12704 (D. Mass.), CLF asserts that EPA’s approval of the TMDLs was arbitrary and capricious because “EPA ignored entirely an important aspect of the water problem facing the embayments: the actual and potential impacts of climate change on the attainment of water quality standards.”  “Because the purpose of TMDLs is to attain water quality standards,” CLF argues, “the CWA requires EPA to consider climate change when reviewing the TMDLs.”  The new action is still pending.

Analysis

So what are we to make of this collection of challenges to EPA’s administration of the CWA for failure to consider the impacts of climate change?  On the one hand, it’s hard to find too much fault with the environmental interests for seeking to ensure that the huge, public investments being made to attain water quality standards under the CSO/SSO and TMDL programs are resilient to climate change impacts and will actually result in the clean water objectives that they have been designed to achieve.  However, in CSOs/SSOs and TMDLs, these groups have set their targets on a couple of the most expensive and controversial programs administered under the CWA.  The costs of complying with CSO/SSO consent decrees and of implementing TMDLs are often in the billions of dollars, which has made both of these programs popular targets for congressional attacks and proposed reform.

My unsolicited advice:  tread carefully.

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