In a two-page judgment entered earlier this month whose brevity belies its potential significance, the U.S. Court of Appeals for the First Circuit denied a petition for a writ of mandamus submitted by environmental groups seeking to compel EPA to take action on applications submitted by two steam electric generating facilities to renew NPDES permits that had expired — one 15 years ago and one 17 years ago — but that have both been administratively continued.
Under Section 402(b)(1)(B) of the Clean Water Act (CWA), NPDES permits are issued “for fixed terms not exceeding five years.” Pursuant, however, to 40 C.F.R. § 122.6, which essentially incorporates the general administrative rule set forth in Section 9(b) of the Administrative Procedure Act, NPDES permits are continued if the permittee submits a complete and timely application but EPA, through no fault of the permittee, does not issue a new permit prior to the expiration of the existing permit.
In In re: Sierra Club, Inc., et al., No. 12-1860 (1st Cir., May 8, 2013), Sierra Club and Our Children’s Earth Foundation submitted a petition for a writ of mandamus seeking to compel EPA “to take long overdue action to issue and finalize” NPDES permits for the Mt. Tom Station in Massachusetts and the Schiller Station in New Hampshire, two approximately 150 MW steam electric generating facilities that discharge once-through cooling water into the Connecticut River and the Piscataqua River Estuary, respectively. The Mt. Tom NPDES permit expired 15 years ago. The Schiller NPDES permit expired 17 years ago. Both permits have been administratively continued.
In determining whether an agency’s delay is “so egregious as to warrant mandamus,” the First Circuit has adopted the test set forth by the D.C. Circuit in Telecommunications Research & Action Center v. FCC (commonly referred to as the TRAC test). The TRAC test requires consideration of several factors, including: whether the amount of time taken was governed by a “rule of reason,” which may be informed by any timetables provided by Congress in the enabling statute; whether human health and welfare are at stake; and whether expediting the delayed action will result in the delay of activities of a higher or competing priority.
In their petition, the environmental groups argued that the CWA-imposed five-year limitation on NPDES permit terms supports a finding that delays of 15 and 17 years (more than three additional five-year permit cycles) are unreasonable. They maintained that the long delay has forestalled the imposition of new effluent limitations accounting for advances in water pollution reduction technologies and/or the fact that the receiving waters for both discharges have been listed as impaired.
In its response, EPA did not deny that “the existing permits have been administratively continued for a long time.” Instead, it maintained that it required additional time to complete the complex analyses necessary to develop NPDES permits for steam electric power plants. In addition, EPA argued that the permits must be balanced against a number of competing priorities, which the agency has limited resources to meet. The agency submitted that the harms alleged by the environmental groups are at best speculative because the content of any final action on the NPDES permits cannot be presumed.
At the outset, the First Circuit held that Section 509(b)(1)(F) of the CWA, which vests exclusive jurisdiction in courts of appeals to review “the Administrator’s action . . . in issuing or denying any [NPDES] permit,” also provides jurisdiction over claims of unreasonable delay in the reissuance of such a permit. In so holding, the Court resolved a jurisdictional question raised by the environmental groups, who had also filed a prophylactic action seeking injunctive relief in the District Court of Massachusetts.
The Court then turned to the merits, rejecting that the circumstances presented in this case qualified as the “extraordinary situations” for which mandamus is reserved. Despite describing EPA’s delays in renewing the permits as “concerning and extensive,” the Court credited EPA’s arguments regarding limited resources and competing priorities and found that the environmental groups had “failed to show why these particular permits should be moved ahead of the queue.” As such, the Court denied the petition for a writ of mandamus, declining even to commit the agency to a projected timetable for issuing the permits. The Court did not indicate whether or not its decision was in any way influenced by the fact that EPA is currently undertaking a couple of national rulemakings regarding standards for cooling water intake structures and steam electric power generating effluent guidelines that would apply to the Mt. Tom and Schiller facilities.
The decision by the First Circuit is potentially significant because there is a large and ever-growing number of NPDES permits that have been administratively continued. Frustrated by the delays in renewing NPDES permits, which are often perceived as deliberate attempts by the agency to avoid making difficult decisions, environmental groups have long considered mandamus actions as a viable tool to compel agency action under the right set of circumstances. Following the decision in In re: Sierra Club, these groups may have to reconsider how they define the right set of circumstances, or even whether mandamus is a tool best left in the toolbox.