Case summaries.

• Position: 2010 NINTH CIRCUIT ENVIRONMENTAL REVIEW - Case overview

1. ENVIRONMENTAL QUALITY

   1. Federal Water Pollution Control Act

      1. Akiak Native Community v. United States Environmental Protection Agency, 625 F.3d 1162 (9th Cir. 2010).

         Petitioner Akiak Native Community (Akiak) (1) sought review of the United States Environmental Protection Agency's (EPA's) (2) decision to authorize the State of Alaska to administer portions of the National Pollutant Discharge Elimination System (NPDES) (3) pursuant to the Clean Water Act (CWA). (4) The United States Court of Appeals for the Ninth Circuit denied Akiak's petition for review, holding that EPA's decision to transfer authority to Alaska to administer the NPDES program was not arbitrary or capricious under the Administrative Procedure Act (APA). (5)

         The NPDES program was established as part of the CWA to regulate discharges of pollutants into the waters of the United States. (6) Originally, EPA administered the NPDES program, granting permits and regulating dischargers, but the CWA requires that EPA transfer authority to states to administer the program when a state demonstrates it meets nine specific criteria. (7) Upon such a successful showing, the Administrator "shall approve each state submitted program unless he determines that adequate authority does not exist" under state law to issue permits that fulfill all criteria. (8) Although EPA must transfer authority upon a successful showing, it retains oversight and the power to revoke state authorization if the program is administered improperly. (9)

         In May 2008, Alaska submitted a proposal to administer the Alaska Pollutant Discharge Elimination System (APDES). (10) In June 2008, EPA published notice of Alaska's proposal and held a sixty-day comment period and three public hearings. After receiving comments and publishing a "Response to Comments" document, EPA approved Alaska's proposal in October 2008. Akiak then filed a timely petition for review, challenging EPA's approval based on two of the required criteria: 1) the APDES did not provide for adequate judicial review as required by the CWA and 2) EPA failed to ensure that Alaska had adequate enforcement tools to abate violations of the APDES as required by the CWA. (11) The CWA requires that EPA encourage "[p]ublic participation in the development, revision, and enforcement of any regulation." (12) Furthermore, to become authorized, a state must demonstrate the ability to "abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement." (13) The court addressed these two criteria and then turned to Akiak's third claim--that EPA failed to comply with provisions of the Alaska National Interest Lands Conservation Act (ANILCA). (14)

         The CWA's implementing regulations, which govern state authorization, dictate that the state "provide an opportunity for judicial review in State Court of the final approval or denial of permits by the State that is sufficient to provide for, encourage, and assist public participation in the permitting process." (15) The regulations further state that a program meets this requirement if state law allows for the same opportunity for judicial review as would be available in federal court for a federally issued NPDES permit. (16) However, a program will not meet this requirement if it "narrowly restricts the class of persons who may challenge the approval or denial of permits." (17) Akiak argued that this regulation requires that a state program provide the same opportunity for judicial review that is available in federal court.

         To protect citizen involvement in public interest suits, the United States Supreme Court directed lower federal courts to award attorney fees to prevailing plaintiffs in normal circumstances, but to prevailing defendants only if the suit was "frivolous" or "unreasonable." (18) Alaska, however, has a "loser pays" rule that indiscriminately awards attorney fees to the prevailing party. (19) Akiak argued that Alaska's system "does not provide citizens the same opportunities for judicial review as are available under federal law" because the risk of paying out a substantial sum in the event that their suit fails will deter some plaintiffs. (20) The Ninth Circuit disagreed and concluded that the most logical reading of the regulation indicates that "providing an opportunity for judicial review equal to that available in federal court is defined to be acceptable, but is not necessarily required." (21) The court found that the regulations contemplate a range of acceptable judicial procedures between clearly sufficient--e.g., an opportunity identical to that provided by the federal system--and clearly insufficient--e.g., a system that narrowly restricts the class of persons who may seek review. The court further noted that even if it found the regulations ambiguous, EPA's interpretation of its own regulation is entitled to significant deference. (22)

         Having found Alaska's system for judicial review permissible under the CWA, the court addressed whether Alaska's system met the general standard to "provide for, encourage, and assist public participation in the permitting process" as required by 40 C.F.R. [section] 123.30. The court agreed with EPA that the APDES, though not providing an opportunity for judicial review identical to the federal system, "still provides for meaningful public participation in the permitting process." (23) The court noted that although the Alaska system does not discriminate between plaintiffs and defendants in awarding attorney fees, Alaska Rule of Civil Procedure 82 allows courts to exercise discretion such that awards may "be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts." (24) In addition, fee awards in appeals from administrative agencies are governed by Alaska Rule of Appellate Procedure 508, which provides that "[a]ttorney's fees may be allowed in an amount to be determined by the court." (25) After briefly discussing the judicial and legislative history of Alaska procedural rules, the court acknowledged the state's pledge not to seek attorney fees from unsuccessful permit-challengers "unless the appeal was frivolous or brought simply for purposes of delay." (26) However, the court determined that although Alaska is beholden to the pledge, such a promise would not apply to private defendants or third parties intervening as defendants. (27) Ultimately, the court was not concerned about such an outcome in light of an absence of evidence that Alaska courts award substantial fees to prevailing third party intervenors. Further, EPA's approval was reasonable considering its continued oversight and power to revoke authorization if the APDES program failed to meet CWA standards. Based on EPA's knowledge of the circumstances at the time it approved Alaska's program, the court held that EPA's decision was not arbitrary or capricious.

         The court next addressed Akiak's challenge that EPA failed to ensure that Alaska possessed adequate enforcement tools to "abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement" as required by the CWA. (28) Akiak argued that Alaska's enforcement powers are inadequate under the CWA because, in contrast to EPA, Alaska officials lack authority to assess civil penalties administratively. (29) The court acknowledged that although the language of the CWA does not mention administrative penalties, the regulations provide that a state's assessment of administrative penalties are "not mandatory [but] highly recommended." (30) Furthermore, EPA recommended two other means for enforcement: "suing to recover costs of remedial efforts and suing for compensation for environmental damage." (31) In light of these approaches, the court found "no reason to conclude that Alaska lacks adequate enforcement remedies." (32)

         Finally, the court addressed Akiak's claim that EPA failed to fulfill the federal government's duty under ANILCA to protect subsistence resources in Alaska's navigable waters. (33) Congress enacted ANILCA to "provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so." (34) The court expressed that in furtherance of that goal, the Act allows rural residents to participate in the management of wildlife on public lands, and requires the action agency to provide notice and a hearing in its evaluation of the effects of federal land use on subsistence resources. (35) Ultimately, the court held that the transfer of NPDES authority did not trigger the requirements of ANILCA for two reasons. First, compliance with ANILCA would require that Alaska meet a tenth criterion before EPA authorized its program under the CWA. The court held that such a condition runs contrary to Section 402(b)'s mandate that the authorization "'shall' be approved if the specified criteria are met." (36) ANILCA cannot control or nullify the CWA provisions because the CWA is a more specific statute with regard to NPDES authority transfer. (37) Second, the court found that ANILCA applies specifically to federal land management agencies--because EPA is not a land management agency and lacks "primary jurisdiction" over "public lands" in Alaska, ANILCA is not triggered and its provisions do not apply. (38)

         In summary, the Ninth Circuit held that EPA's decision to authorize Alaska to administer the NPDES program was not arbitrary or capricious because the APDES provided adequate judicial review, Alaska possessed adequate enforcement tools, and EPA's transfer of NPDES authority did not trigger ANILCA.

      2. Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011).

         The Northwest Environmental Defense Center (NEDC) (39) brought suit against the State of Oregon officials and timber companies (collectively Brown) (40) regarding a violation of the CWA. (41) NEDC alleged that stormwater...