The U.S. Court of Appeals for the D.C. Circuit recently held that the Center for Regulatory Reasonableness, an industry group, could not sue the U.S. Environmental Protection Agency in the D.C. Circuit based on the EPA’s statements that it would not follow the 2013 Eighth Circuit Court of Appeals’ decision in Iowa League of Cities v. U.S. EPA, 711 F.3d 844 (8th Cir. 2013) outside of that Circuit, because the D.C. Circuit lacked jurisdiction to hear that particular challenge. [Center for Regulatory Reasonableness v. U.S. Environmental Protection Agency, ___F.Supp.3d___, Case No. 14-1150 (D.C. Cir. Feb. 28, 2017).]

In 2011, two policy letters sent by the EPA to a U.S. Senator “explained and arguably changed” two of the EPA’s policies regarding publicly owned water treatment facilities. A group representing the interests of municipalities challenged the policy letters in the Eighth Circuit, in Iowa League of Cities v. U.S. EPA (http://media.ca8.uscourts.gov/opndir/13/03/113412P.pdf).

In that case, the petitioners argued that the letters effectively set forth new regulatory requirements under the federal Clean Water Act with respect to water treatment processes at municipally owned sewer systems.

The Eighth Circuit held that in the first letter the EPA eviscerated state discretion to incorporate mixing zones into their water quality standards with respect to waters designated for primary contact recreation, and in the second letter the EPA effectively announced a legislative rule with respect to blending peak wet weather flows. The court granted the petition for review and vacated the rules from both letters, remanding the matter to the EPA for further consideration. The EPA opted not to appeal the decision.

Rather, the EPA invoked the doctrine of inter-circuit non-acquiescence, in taking the position that the Eighth Circuit’s decision was binding only in that circuit, and that in other jurisdictions the EPA would apply the decision on a case-by-case basis. Starting in 2013, the EPA made statements indicating that, outside of the Eighth Circuit, it would not acquiesce in or follow the Iowa League of Cities decision.

The Center for Regulatory Reasonableness sued directly in the Court of Appeals for the D.C. Circuit, claiming among other things that the EPA’s statements of non-acquiescence were themselves rules promulgated without the required notice and comment, and in excess of the EPA’s statutory authority. The Center for Regulatory Reasonableness sought a ruling declaring that the Eighth Circuit’s decision was to be applied nationwide.

The Court of Appeals for the D.C. Circuit held that it did not have jurisdiction to hear the kind of challenge that the Center for Regulatory Reasonableness raised. The court noted that although § 509(b)(1)(E) of the Clean Water Act authorizes direct court of appeals review of EPA-promulgated effluent or other limits on discharge of pollutants, the EPA’s statements did not announce an effluent or other limit on pollutant discharge, but merely articulated how the EPA would interpret the Eighth Circuit’s decision.

The court concluded that in order for the Center for Regulatory Reasonableness to successfully pursue a claim that the EPA is violating the Eighth Circuit’s mandate, it would have to seek mandamus or other appropriate relief in the Eighth Circuit. This issue may also become ripe for Supreme Court review, if other groups challenge the EPA’s statements in court and the circuits issue decisions that conflict as to the EPA’s duties. The court’s ruling is accessible online at: https://www.cadc.uscourts.gov/internet/opinions.nsf/8210DB0A2B50E12E852580D50053057A/$file/14-1150-1663310.pdf

(Danielle Sakai, Jacqueline Yaeger)