Streamlining EPA's NPDES permit program with administrative summary judgment: Puerto Rico Aqueduct & Sewer Authority v. Environmental Protection Agency.

• Author: Turner, R. Cammon
• Position: National Pollutant Discharge Elimination System

1. Introduction

   Nearly forty years ago, Professor Kenneth C. Davis declared: "Some agencies might well take a leaf from the federal rules of civil procedure and permit summary judgment without evidence when no issue of fact is presented."(1) Several federal agencies have followed this advice by incorporating summary disposition provisions into their regulatory schemes.(2) Under such provisions, an agency may refuse to hold an evidentiary hearing when an applicant is unable to establish a substantial factual or legal dispute in its request for an evidentiary hearing. Similarly, if an evidentiary hearing is granted, an agency may summarily dispose of a particular claim or defense when a party fails to advance an issue worthy of full adjudication. Both applications effectively resolve disputes without expending valuable agency resources or infringing on a party's statutory right to a hearing.

   The Environmental Protection Agency (EPA) has promulgated rules adopting both summary determination procedures.(3) Although EPA's use of administrative summary judgment following the granting of a hearing has received little attention,(4) its use to deny a hearing request has been the subject of two First Circuit cases(5) and numerous agency adjudications.(6) This Note focuses on the latter use of the device. Both the First Circuit and EPA look to Federal Ride of Civil Procedure 56 and relevant case law to determine when administrative summary judgment is appropriate.(7) This approach provides both adjudicators and private parties meaningful guidance as to when an evidentiary hearing is necessary to resolve disputes over National Pollutant Discharge Elimination System (NPDES) permits.(8)

   Despite rigorous analysis of administrative summary judgment's general tenets, EPA and the First Circuit have glossed over many fine points. This Note addresses potential problems and recommends continued and expanded use of administrative summary judgment when a hearing requester cannot show that an evidentiary hearing would be meaningful. Part II briefly describes the federal summary judgment rule and analyzes the development of administrative summary judgment by various federal agencies. Part III outlines the Clean Water Act(9) and the implementing regulations that provide for administrative summary judgment.(10) Finally, part IV examines additional considerations in applying the federal summary judgment standard in the administrative hearing context.

2. The Judicial and Administrative Summary Judgment Rules

   1. Federal Summary Judgment Rule

1. Introduction

   In applying administrative summary judgment, many federal administrative agencies look to Federal Rule of Civil Procedure 56 (Rule 56) for guidance.(11) The federal summary judgment rule is intended "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."(12) The basis for granting summary judgment is the lack of a disputed issue requiring evidentiary review for resolution.(13) According to Ride 56, a party's motion for summary judgment shall be granted if there is no genuine issue as to any material fact, and the moving party is "entitled to a judgment as a matter of law."(14) If there is a genuine issue as to any material fact, the motion must be denied.(15) A plaintiff or defendant may make a motion for summary judgment with or without supporting affidavits.(16) Although Rule 56 does not expressly provide for a court-initiated grant of summary judgment, it is within the court's power.(17)

   Summary judgment, when properly applied, yields increased judicial efficacy and economy.(18) Litigants are spared the necessity of preparing for and executing a full-dress trial.(19) The court is able to reduce its docket and to allocate time and resources efficiently.(20) Even if a motion for summary judgment is denied, the process defines and limits the issues that are eventually litigated.(21)

   The decision to grant or deny a motion for summary judgment requires analysis of three, often interrelated, matters: 1) whether the issue is purely legal or factual, or somewhere in between; 2) whether resolution of a specific issue will affect the final outcome of the adjudication; and 3) if questions of fact are involved, whether a reasonable trier of fact could find for the nonmoving party.

   2. The of Issue and Value of Full Adjudication

      The issues to be resolved at trial range from disputes over basic facts to questions of law. Ascertaining where an issue falls on this factual-legal spectrum partly determines the appropriateness of summary judgment, though this is a particularly difficult exercise.(22) Disputes relating solely to historical facts or credibility of testimony generally require a trial to allow confrontation and cross-examination.(23) When a question of law cannot be addressed until underlying historical facts are resolved, such as whether a contract exists, the issue is described as a mixed question of law and fact.(24) In such cases, disputed facts normally preclude summary judgment.(25) If, however, parties do not contest the facts and the dispute focuses solely upon legal standards, conclusions, or inferences, a trial simply belabors points that could otherwise be settled quickly and painlessly.(26)

      In general, pinpointing the location of an issue on the factual-legal spectrum is essential for assessing the appropriateness of summary judgment. In nonjury situations, however, the decision maker's role shifts from identifying the type of issue to appraising the value of full adjudication. In other words, in nonjury situations, including administrative evidentiary hearings, the critical question for determining summary judgment is: Would a complete adjudicative proceeding improve the decision maker's ability to resolve effectively the disputed factual or legal issue?(27)

      For example, if the disputed issue is the amount of pollutant discharged on a certain date and only two conflicting monitoring reports of equivalent evidentiary value are available, the issue may be resolved without a trial or hearing because the judge is also the fact-finder. Because demeanor evidence or competing expert opinions are not at issue, an adjudicative proceeding before a judge would add nothing to the decision-making process. Likewise, if the dispute centers solely on a legal issue, the dispute can easily be settled by a decision maker without a formalized adjudicative proceeding. However, when expert testimony is necessary to interpret scientific details of a monitoring report and their credentials may be an issue, summary disposition is inappropriate.(28) In short, absent crucial questions of demeanor evidence or basic facts, dispensing with an adjudicative proceeding through summary judgment is appropriate in many nonjury situations such as administrative evidentiary hearings.(29)

   3. Materiality and Genuineness Requirements

      Notwithstanding whether an issue is purely legal or whether an adjudicative proceeding would add to the decision-making process, a judge must assess the materiality and genuineness of a dispute. In Anderson v. Liberty Lobby, Inc.,(30) the Supreme Court explained that a nonmoving party must advance a material, factual dispute to avert a motion for summary judgment.(31) If resolution of a factual dispute would not affect the final determination of the claim, the issue is immaterial and summary judgment is appropriate.(32) The materiality of fact depends on whether the underlying substantive law identifies the fact as critical or irrelevant.(33) The materiality requirement applies equally to administrative summary judgment.(34)

      In addition to fulfilling the materiality requirement, a nonmoving party must also establish a genuine issue to avoid summary judgment. The Liberty Lobby Court held that summary judgment is precluded when the dispute over a material fact is genuine.(35) A genuine issue exists when a reasonable decision maker could render a favorable verdict to either party under the applicable standard of proof.(36) Accordingly, the test for genuineness has become the standard for assessing summary judgment proof.(37) If it is clear that the nonmoving party cannot prevail at trial, summary judgment should be granted for the moving party.(38) The nonmoving party in the administrative context must also establish a genuine issue to avoid summary judgment.(39) In this context, the burdens of persuasion and production are less problematic.(40)

      As admonished by the Liberty Lobby Court, when determining whether there is a genuine issue of material fact, a judge must avoid the temptation to weigh the evidence.41 Weighing of evidence is the exclusive domain of the jury.(42) On a motion for summary judgment the evidence should be viewed in the light most favorable to the nonmoving party.(43)

   4. Burden Shifting

      Under Rule 56, the moving party must make a showing that it is entitled to a favorable judgment as a matter of law.(44) If the nonmoving party bears the burden of persuasion at trial, summary judgment may be granted solely on the pleadings, depositions, answers to interrogatories, and admissions on file.(45) The moving party may discharge its burden by demonstrating that there is no evidence to support a favorable judgment for the nonmoving party.(46) In this case, to preclude summary judgment, the non-moving party must "go beyond the pleadings" and show specific facts that support a genuine issue for resolution.(47) Failure by the nonmoving party to make the requisite showing will result in summary judgment; however, the court, at its discretion, may give the nonmoving party additional time to make the necessary showing.(48)

      2. Origins of Administrative Summary Judgment

1. Avoiding Administrative Adjudication Through Rulemaking

   In general, an agency has the discretion to choose between rulemaking and adjudication to establish agency regulations.(49) By choosing to promulgate rules, an agency can obviate some...