Florida Wildlife Federation et al v. McCarthy et al

Filing 62

ORDER denying 50 --motion for reconsideration; granting summary judgment on Count IV in favor of the EPA and against the plaintiffs. Signed by Judge Steven D. Merryday on 7/28/2015. (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 allege five counts against Gina McCarthy, Heather McTeer
Toney, and the Environmental Protection Agency (collectively, the EPA). A June 4
order (Doc. 46) grants the EPA’s motion to dismiss Count III but denies the EPA’s
motion to dismiss Count IV. Also, a June 18 order (Doc. 51) grants the EPA’s
motion for summary judgment on Count V but denies the EPA’s motion for
summary judgment on Count IV. Nonetheless, the June 18 order directs the
plaintiffs to explain Count IV — “the plaintiffs must explain how the EPA has
‘unreasonably delayed’ either (1) ‘making a necessity determination’ or (2) furnishing
an ‘adequate explanation’” for declining to “make a necessity determination.”
(Doc. 51 at 4 (citing Gulf Restoration Network v. McCarthy, 783 F.3d 227, 243 (5th Cir.
2015) (Higginbotham, J.)))

DISCUSSION
Count IV is entitled, “EPA has unlawfully withheld or unreasonably delayed
making a [Clean Water Act] § 303(c)(4)(B) determination.” (Doc. 1 at 67) Under
Section 303(c)(4)(B), the EPA “Administrator shall promptly prepare and publish
proposed regulations setting forth a revised or new water quality standard . . . in any
case where the Administrator determines that a revised or new standard is necessary
to meet the requirements of this Act.” In other words, the EPA has discretion to
“make a necessity determination.” Gulf Restoration Network, 783 F.3d at 242.
However, if a person petitions the EPA to “make a necessity determination” and the
EPA denies the petition, the EPA must “provide[] an adequate explanation,
grounded in the statute, for why [the EPA] has . . . elected” not to “make a necessity
determination.” Gulf Restoration Network, 783 F.3d at 242–43; see also Florida Wildlife
Fed’n v. McCarthy, No. 8:14-cv-3204, at 6 n.2 (M.D. Fla. June 4, 2015) (“[A]fter Gulf
Restoration Network, the EPA has a duty to explain a declination to exercise
discretion.”).
1. The EPA
The June 4 order states:
Mistakenly interpreting Count IV to argue that Section 303(c)(4)(B)
imposes a duty, the EPA responds that the EPA’s “authority under
Section 303(c)(4)(B) is discretionary.” (Doc. 10 at 16) . . . However, the
plaintiffs correctly acknowledge that “the EPA ha[s] discretion to decide
not to make a necessity determination.” Gulf Restoration Network[,
783 F.3d at 242].

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(Doc. 46 at 4) The EPA moves (Doc. 50) for reconsideration of the order and argues,
“Count IV seeks to compel action that Plaintiffs assert is required under the [Clean
Water Act] — ‘making a § 303(c)(4)(B) determination of necessity.’”* However, the
plaintiffs on several occasions clarify that, although the EPA can choose not “make a
necessity determination,” the EPA “must provide a reasonable explanation for not
exercising its discretion and performing a ‘necessity determination.’” (Doc. 13 at 18;
Doc. 42 at 16; Doc. 55 at 3) Assuming that the EPA declined to “make a necessity
determination,” Count IV argues that the EPA “unreasonably delayed” performing
the duty to furnish a “reasonable explanation” for the declination. Thus, Count IV’s
title — “EPA has unlawfully withheld or unreasonably delayed making a [Clean
Water Act] § 303(c)(4)(B) determination” — is somewhat misleading.
2. Plaintiffs
The plaintiffs incorrectly believe that the Florida Department of
Environmental Protection (FDEP)’s submitting to the EPA a list of “impaired
waters” “triggered the application of [the Clean Water Act] § 303(c)(4)(B).” (Doc. 55
at 2) A petition for a “necessity determination,” not the FDEP’s submission,
“triggers” the EPA’s duty to either (1) “make a necessity determination” or

*

The plaintiffs sue under the Administrative Procedure Act, which states that “final agency
action for which there is no other adequate remedy in a court [is] subject to judicial review.” With
some inapplicable exceptions, the Clean Water Act states that “any citizen may commence a civil
action . . . against the Administrator where there is alleged a failure of the Administrator to perform
any act or duty under [the Clean Water] Act which is not discretionary with the Administrator.”
Thus, if the complaint alleges that the EPA failed to perform a “non-discretionary act or duty,” the
complaint fails to state a claim under the Administrative Procedure Act because the Clean Water
Act contains an “adequate remedy in a court.”

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(2) “provide an adequate explanation” for declining to “make a necessity
determination.” See, e.g., Gulf Restoration Network, 783 F.3d at 232; Massachusetts v.
EPA, 549 U.S. 497, 533 (2007); see also National Wildlife Fed’n v. Browner, 1996 WL
601451, at *6 (D.D.C. Oct. 11, 1996) (Green, J.) (“The plaintiffs may . . . formally
petition the agency for issuance of a rule . . . . Should the agency reject such a
petition on the merits or adopt the position that it lacks the authority under
Section 303(c)(4)(B) . . . , the petitioners could institute a new suit challenging these
decisions.”).
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) Assuming that the EPA
denied the petition, Count IV argues that the EPA “unreasonably delayed”
performing a duty to furnish an “adequate explanation” for denying the petition.
However, only two-and-a-half months passed after the petition and before this action.
The June 18 order states, “Nothing in the record suggests that the EPA’s two-and-ahalf-month delay was unreasonable.” (Doc. 51 at 3) The plaintiffs fail to “explain
how the EPA has ‘unreasonably delayed’ either (1) ‘making a necessity
determination’ or (2) furnishing an ‘adequate explanation’” for declining to “make a
necessity determination.” (Doc. 51 at 4)

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CONCLUSION
Because the EPA misunderstands Count IV, the EPA’s motion (Doc. 50) for
reconsideration is DENIED. However, “[a]fter giving notice and a reasonable time
to respond and identify material facts that may not be genuinely in dispute, a court
may . . . grant summary judgment sua sponte.” Moore’s Federal Practice, Vol. 11,
§ 56.02[5] (3d ed. 2015). Because the plaintiffs fail to explain how the EPA has
“unreasonably delayed” either (1) “making a necessity determination” or
(2) furnishing an “adequate explanation” for declining to “make a necessity
determination,” summary judgment on Count IV is GRANTED in favor of the EPA
and against the plaintiffs.
ORDERED in Tampa, Florida, on July 28, 2015.

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