January 20, 2020

January 20, 2020

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Advocacy Groups Have a New Opening to Enforce the CWA When States Do Not Act

A district court judge adopted the rarely applied “constructive submission” doctrine, which could ultimately give advocacy groups leverage over states that ignore Clean Water Act (CWA) requirements. This decision may embolden advocacy groups and comes at a time when, as noted in previous posts on this blog, enforcement actions brought by public citizens continue to grow as an effective means of enforcing environmental laws and regulations.

The Constructive Submission Doctrine

On November 13, 2019, in Environmental Law & Policy Center (ELPC), et al. v. EPA, a Northern District of Ohio court became the second district court nationwide to endorse the “constructive submission” doctrine as a way to force the EPA to set standards for polluted bodies of water when states neglect to set those standards.

The CWA requires states to maintain water quality standards to restore the ecological integrity of domestic bodies of water. See Envtl. Law & Policy Ctr., et al. v. EPA, et al., No. 3: 19-CV-295, at pg. 2 (N.D. Ohio Nov. 13, 2009). The CWA also requires that states submit to the EPA a list of “impaired” waters where existing pollution controls do not uphold the CWA’s water quality standards. States must then use these designations to establish pollutant limits for each body of water. The EPA must approve or reject the submission within 30 days. See id, at pg. 4. There is no specific deadline for states’ submissions. However, if the EPA rejects any submitted limits, the agency must set its own for the respective state waterbodies. See id, at pg. 4.

Without a submission deadline, states sometimes avoid setting limits by dawdling on the EPA submission. Advocacy groups are attempting to close this statutory loophole, arguing that a state’s persistent failure to submit limits constitutes “constructive submission” of inadequate limits. This is because states’ continuous refusal to submit limits is necessarily insufficient to maintain water quality standards. See id., at pg. 23-24.  Environmentalists argue this constructive submission then triggers the EPA’s obligation to promulgate their own limits. See id.

ELPC’s Endorsement of Constructive Submission

Although the Seventh, Ninth, and Tenth Circuit all endorse the constructive submission doctrine, prior to ELPC, it was only affirmatively applied by a district court once in Sierra Club v. McLerran out of the Western District of Washington in 2015.  2015 WL 1188522 (W.D. Wash. Mar. 16, 2015); Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984); San Francisco BayKeeper v. Whitman, 297 F.3d 877, 893 (9th Cir. 2002); Hayes v. Whitman, 264 F.3d 1017, 1024 (10th Cir. 2001). In the Ohio case, ELPC argued that the EPA was required to set a pollutant limit for Lake Erie because Ohio had failed to do so. In response, the EPA moved to dismiss ELPC’s claim and argued that the constructive submission doctrine applied only if states clearly and unambiguously refuse to set limits. See id., at pg. 21. The court accepted the EPA’s standard, but found that Ohio had moved Lake Erie from its high priority list (indicating an urgent necessity to set pollutant limits) to its low priority list, indicating that Ohio had no plan to set its pollutant limits. See id., at pg. 28-29. The court thus denied the EPA’s motion because ELPC plausibly demonstrated that Ohio clearly and unambiguously refused to set a pollutant limit for Lake Erie.

It is worth noting that given the ELPC court was ruling on a motion to dismiss, all facts were viewed in the light most favorable to ELPC, and the ELPC only needed to allege a plausible argument for its claim to survive. See id. Nonetheless, the court’s tentative finding is significant.

Implications Moving Forward

The ELPC opinion endorsed constructive submission as a legitimate way to contest states’ lackadaisical responses to their CWA obligations and laid the foundation for another affirmative federal application. The decision will likely encourage advocacy groups to rely on constructive submission with increasingly favorable district court precedent.

The ELPC ruling indicates that individuals need not wait for the government to act, but may be able to treat government inaction as, itself, action. Were the concept of constructive submission to spread, state and federal inaction in other areas could be treated as necessarily inadequate. This would have serious implications for utilities, state EPAs, and the federal EPA because activists would have another effective means of hauling them into court when the government fails to act quickly enough.

This post features contributions from Steve Wazny.

© 2020 Schiff Hardin LLP

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About this Author

Robert A. Middleton, Schiff Hardin, Chicago, Energy Lawyer, Litigation
Associate

Robert Middleton is taking advantage of the opportunity for new associates to work in several practice groups for broadened experience and expanded legal counseling perspectives.

Prior to joining Schiff Hardin, Mr. Middleton was with Northwestern University’s Center on Wrongful Convictions, first as a 711 student, and, after graduation, as a Public Interest Law Initiative Fellow. He also gained valuable experience as a Schiff Hardin summer associate in 2013. Earlier, Mr. Middleton was a legal intern with Equality Illinois.

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