Florida Wildlife Federation et al v. McCarthy et al
Filing
51
ORDER re 35 and 37 --motions for summary judgment; denying as moot motions re Count III; denying EPA's motion re Count IV; directing the plaintiffs to respond by 6/30/2015 re Count IV; denying the plaintiffs' motion on Counts IV and V; granting the EPA's motion on Count V. Signed by Judge Steven D. Merryday on 6/18/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FLORIDA WILDLIFE FEDERATION,
et al.,
Plaintiffs,
v.
CASE NO. 8:14-cv-3204-T-23EAJ
GINA MCCARTHY, et al.,
Defendants.
____________________________________/
ORDER
The plaintiffs and the EPA1 move (Docs. 35, 37) for summary judgment on
Counts III–V. Because a June 4, 2015 order (Doc. 46) dismisses Count III, the
motions (Docs. 35, 37) for summary judgment on Count III are DENIED AS
MOOT. Further, because the EPA’s motion repeats in favor of Count IV an
argument rejected in the June 4, 2014 order, the EPA’s motion (Doc. 37) for
summary judgment on Count IV is DENIED. The remainder of this order resolves
the plaintiffs’ motion (Doc. 35) for summary judgment on Counts IV and V and the
EPA’s motion (Doc. 37) for summary judgment on Count V. The State of Florida,
the Florida Department of Environmental Protection (the FDEP), and the Florida
1
The plaintiffs sue Gina McCarthy, Heather McTeer Toney, and the Environmental
Protection Agency (collectively, the EPA).
Department of Agriculture and Consumer Services intervene (Doc. 38) as defendants
and oppose (Doc. 41) the plaintiffs’ motion.
Under Section 303(c)(4)(B) of the Clean Water Act, the EPA has the discretion
to determine whether “a revised or new standard is necessary to meet the
requirements of” the Clean Water Act. On October 2, 2014, Cindy Davis, a plaintiff
in this action, petitioned the EPA “to initiate rulemaking to promulgate the necessary
revisions to [the FDEP’s] antidegradation water quality standards.” (Doc. 16-1 at 1)
The EPA has not responded to the petition. The plaintiffs argue that the EPA
“unreasonably delayed”2 performing (1) a duty to furnish an “adequate explanation”
for denying the petition (Count IV)3 and (2) a duty to respond to the petition “within
a reasonable time” (Count V).4
2
Section 706(1) of the Administrative Procedure Act “compel[s] agency action unlawfully
withheld or unreasonably delayed.” Because “Congress has not provided any timetable or other
indication of the speed with which it expects EPA to respond to petitions” (Doc. 37 at 18),
Counts IV and V argue only that the EPA “unreasonably delayed” (not “unlawfully withheld”)
performance of a duty. See Tang v. Chertoff, 493 F. Supp. 2d 148, 155 (D. Mass. 2007) (Gertner, J.)
(explaining the difference between “unreasonably delayed” and “unlawfully withheld”).
3
After receiving a petition demanding a “necessity determination,” the EPA must either
(1) “make a necessity determination” or (2) deny the petition and furnish an “adequate explanation”
for denying the petition. See Gulf Restoration Network v. McCarthy, 783 F.3d 227, 243 (5th Cir. 2015)
(Higginbotham, J.). Assuming that the EPA decided not to “make a necessity determination,”
Count IV argues, “It is unlawful for EPA to withhold or unreasonably delay making any explanation
regarding its reasoning for not exercising its [Clean Water Act] § 303(c)(4)(B) discretionary
authority.” (Doc. 13 at 18; Doc. 42 at 16)
4
Count V argues that the EPA violated Section 555(b) of the Administrative Procedure Act,
which requires an agency to “within a reasonable time . . . conclude a matter presented to it.”
-2-
The plaintiffs’ motion for summary judgment5 states, “It is undisputed [that]
EPA has not taken any agency action on Mrs. Davis’s October 2, 2014 petition to
EPA.”6 (Doc. 35 at 24) However, neither the complaint nor the motion explains
how the EPA’s waiting approximately two and a half months7 to respond to the
petition constitutes “unreasonable delay.”
“In the context of a claim of unreasonable delay, the first stage of judicial
inquiry is to consider whether the agency’s delay is so egregious as to warrant
mandamus.” Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir.
1984) (Edwards, J.); accord Ren v. Mueller, 2008 WL 191010, at *10 (M.D. Fla.
Jan. 22, 2008) (Fawsett, J.). Nothing in the record suggests that the EPA’s two-anda-half-month delay was unreasonable. Indeed, the EPA explains that the EPA “has
been addressing a variety of competing priorities” and that “EPA has the discretion
to prioritize its actions taken under the [Clean Water Act], and is owed deference as
to such prioritization.” (Doc. 37 at 18–20) See Gulf Restoration Network v. McCarthy,
783 F.3d 227, 244 (5th Cir. 2015) (Higginbotham, J.) (“[W]hen a statute sets out
5
Like many of the plaintiffs’ previous filings, the motion mostly consists of irrelevant,
cut-and-paste descriptions of the plaintiffs’ five counts, the Administrative Procedure Act, the Clean
Water Act, and Florida’s antidegradation policy.
6
The plaintiffs state, “Mrs. Davis’ petition to EPA is very similar to the July 10, 2012
petition to initiate rulemaking filed by” the Florida Wildlife Federation on July 10, 2012. (Doc. 1
at 72; Doc. 35 at 24) However, the plaintiffs sue for a response only to the October 2, 2014 petition.
Further, the July 10, 2012 petition fails to discuss the EPA’s “2014 Decision” (Doc. 11-1), which is
the basis of this action.
7
Davis petitioned the EPA on October 2, 2014. The plaintiffs sued on December 24, 2014.
-3-
competing considerations, agencies are generally given discretion to choose how to
best give effect to those mandates.”). Further, the EPA “anticipates that it will
respond to . . . [the petition] by the end of July 2015, less than ten months after
receiving the . . . petition.” (Doc. 37 at 17) See National Parks Conservation Ass’n v.
Norton, 324 F.3d 1229, 1239 (11th Cir. 2003) (determining that an agency “is not
presently ‘withholding or delaying’ final action” based on, among other factors, the
agency’s assurance that “it will reach a final decision . . . by ‘mid-May’”).
Accordingly, the plaintiffs’ motion (Doc. 35) for summary judgment on
Counts IV and V is DENIED. The EPA’s motion (Doc. 37) for summary judgment
on Count V is GRANTED. No later JUNE 30, 2015, within five pages, the plaintiffs
must explain how the EPA has “unreasonably delayed” either (1) “making a
necessity determination” or (2) furnishing an “adequate explanation” for denying the
petition. See Gulf Restoration Network, 783 F.3d at 243. Failure to comply with this
requirement will result without further notice in a judgment on Count IV in favor of
the defendants and against the plaintiffs.
ORDERED in Tampa, Florida, on June 18, 2015.
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