The opinion of the court was delivered by: Leisure, District Judge:
This case involves the alleged failure for the past twenty
years of the State of New York to establish pollution limits,
known as total maximum daily loads ("TMDLs"), for waterbodies in
the State. Plaintiffs bring
this action against the United States Environmental Protection
Agency and two of its administrators (collectively, "EPA"),
pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1251,
et seq., and the Administrative Procedure Act ("APA"),
5 U.S.C. § 501 et seq., alleging that in the
face of New York State's failure to act, EPA has unlawfully
failed to intervene and establish the TMDLs itself Plaintiffs
raise a number of related claims, including that EPA has acted
arbitrarily and capriciously with respect to New York State's
1997 submission of proposed TMDLs for reservoirs that supply
drinking water to New York City.
By Opinion and Order dated December 11, 1995, the Court ruled
inter alia, that (i) New York State's alleged failure to submit
TMDLs could trigger nondiscretionary duties of EPA to intervene,
and (ii) genuine issues of material fact exist as to whether
certain of New York State's submissions to EPA constitute TMDLs,
and, even if they do, whether EPA nonetheless must intervene. See
Natural Resources Defense Council. Inc. v. Fox, 909 F. Supp. 153,
156-158 (S.D.N.Y. 1995) [hereinafter, "NRDC"].
By Opinion and Order dated November 12, 1998, the Court granted
partial summary judgment to defendants, dismissing all but one of
plaintiffs' Clean Water Act claims, but denying summary judgment
on plaintiffs' claims under the Administrative Procedure Act. See
Natural Resources Defense Council. Inc. v. Fox, 30 F. Supp.2d 369
(S.D.N.Y. 1998) [hereinafter, "NRDC II"]. Subsequently, the
parties agreed to submit these remaining claims to the Court for
final judgment. The parties' final briefs were fully submitted on
April 9, 1999.
The Court presumes familiarity with the discussion of the Clean
Water Act's statutory scheme in its previous decisions in this
action. See NRDC II, 30 F. Supp.2d. at 373-74; NRDC, 909 F.
Supp. at 156-57. Accordingly, only those elements of the Clean
Water Act pertinent to the motions presently before the Court are
set forth here.
The instant case involves Section 303(d) of the Clean Water
Act, which regulates waterbodies failing to meet water quality
standards even upon application of so-called technological
pollution controls. See 33 U.S.C. § 1313(d)(1)(A). States are
required to create a prioritized list of such waterbodies, and,
upon EPA's approval of the priority list, to establish TMDLs for
each waterbody concerning pollutants specified by EPA. See
33 U.S.C. § 1313(d)(1)(A) & (C).
The Act prescribes the basic elements of a TMDL:
Such load shall be established at a level necessary
to implement the applicable water quality standards
with seasonal variations and a margin of safety which
takes into account any lack of knowledge concerning
the relationship between effluent limitations and
Id. § 1313(d)(1)(C). EPA regulations further provide that a
TMDL shall consist of the sum of: (i) the loading allotments for
existing and future point sources of pollution*fn1 (known as
"wasteload allocations"), and (ii) the loading allotments for
existing and future nonpoint sources of pollution and natural
background sources of pollution (known as "load allocations").
See 40 C.F.R. §§ 130.2(e)-(i).
The Act provides that states "shall submit" the prioritized
lists of waterbodies and accompanying TMDLs "from time to time,
with the first such submission not later than one hundred and
eighty days after" EPA identifies relevant pollutants. See
33 U.S.C. § 1313 (d)(2). The parties do not dispute that the
states' initial TMDLs and lists of waterbodies were due on June
26, 1979. See NRDC, 909 F. Supp. at 157.
Upon receipt of lists and/or TMDLs, EPA "shall either approve
or disapprove [them] . . . not later than 30 days after the date
of submission." Id. § 1313(d)(2). Should EPA disapprove
either a list of waterbodies or a TMDL,
[it] shall not later than thirty days after the date
of such disapproval identify' such waters in such
State and establish such loads for such waters as
[it] determines necessary to implement the water
quality standards applicable to such waters . . .
Principally at issue in the instant case is New York State's
alleged failure to submit TMDLs to EPA for review. The Clean
Water Act does not expressly address what duty, if any, EPA bears
under such circumstances. See id. § 1313(d). This Court and
others have read into the Act a requirement that EPA treat such
state inaction as a so-called "constructive submission" of a
deficient TMDL, triggering EPA's explicit mandatory duties under
the Act to disapprove the "submission," id. § 1313(d)(2), and
to establish TMDLs for the state, id. See NRDC, 909 F. Supp. at
157 (explaining doctrine and listing cases).
In NRDC II, the Court identified the issues to be decided in
the final stage of this action, and in April 1999 the parties
submitted the record upon which the Court will adjudicate
plaintiffs' remaining claims. The administrative record ("AR"),
dated January 8, 1998, consists of the evidence relied upon by
EPA in its April 2, 1997, actions upon proposed TMDLs submitted
by New York State, and provides the basis for the Court's review
of plaintiffs' Claims Nine, Ten, and Eleven. The joint appendix
("JA") is a compendium of documents compiled jointly by the
parties to assist the Court in its adjudication of Claims Six,
Seven, Twelve, and Thirteen.
Of the thirteen claims enumerated in plaintiffs' Fourth Amended
Complaint, only seven remain to be decided by the Court.*fn2
What had its origin as a Clean Water Act case is now primarily a
suit under the Administrative Procedure Act. But while these APA
claims are legally and analytically distinct from the original
CWA claims, the underlying facts and plaintiffs' concerns remain
the same. The Court briefly outlines these remaining claims.
Claims Six and Seven respectively seek judicial review under
the APA of EPA' s alleged failure "to formally disapprove New
York State's TMDL submissions due from time to time," and its
alleged failure "to formally establish and promulgate TMDLs
applicable to WQLSs in New York State." Fourth Am. Compl. at
Claim Nine seeks APA review of EPA's alleged failure "to
disapprove facially inadequate TMDLs for eight New York City
reservoirs submitted by New York State to EPA on January 31,
1997." id. at ¶ 57.
Claims Ten and Eleven allege, respectively, that EPA breached a
mandatory duty under the Clean Water Act, and should be compelled
to act pursuant to the APA, for its failure to "approve or
disapprove purported TMDLs for 10 New York City reservoirs
submitted by New York State to EPA on January 31, 1997." Id. at
Claims Twelve and Thirteen allege, respectively, that EPA
breached its mandatory duties under the Clean Water Act, and
should be compelled to act pursuant to the APA, for failing since
1979 "to oversee and effectuate the § 303(d) program in New
York State as set forth in paragraph[s] 28-37e of this [Fourth]
Amended Complaint." Id. at ¶¶ 60-61.
Pursuant to Fed. R. Civ. P. 52(a), the parties have filed
cross-motions for final judgment on the pleadings now before the
Court. Rule 52(a) permits the Court, with the consent of the
parties, to decide a case without a formal trial "based on the
record compiled in summary judgment proceedings." Acuff-Rose
Music. Inc. v. Jostens. Inc., 155 F.3d 140, 142 (2d Cir. 1998).
In NRDC II, the Court responded to plaintiffs' repeated
suggestion that they were entitled to "trial" of their claims,
noting that "a full trial may be inappropriate in the instant
case," given the Supreme Court's directive that "`the focal point
for judicial review should be the administrative record already
in existence, not some new record made initially in the reviewing
court.'" NRDC II, 30 F. Supp.2d at 384 (quoting Camp v. Pitts,
411 U.S. 138, 142 (1973) (per curiam)). The Court invited the
parties to discuss whether plaintiffs' claims might be "the sort
that can be decided based on final briefing by the parties
incorporating references to relevant portions of the existing
administrative record and, where appropriate, to supplementary
affidavits or deposition excerpts from agency officials." Id. at
Following discussions among the parties and a pre-trial
conference before the Court, on December 30, 1998, the Court
approved the parties' joint stipulation and scheduling order,
memorializing the parties' agreement to submit these claims to
the Court for final judgment, and establishing a briefing
schedule pursuant to Fed. R. Civ. P. 16(b).
Although the Court has twice denied the parties' motions for
summary judgment on the remaining claims in this suit, the Court
applies a different legal standard to the cross-motions now
before it. In considering the parties' earlier motions for
summary judgment, the Court was bound to make all reasonable
inferences in favor of the moving party. See Anderson v. Liberty
Lobby, Inc.,, 477 U.S. 242, 255 (1986); see also Holt v.
KMI-Continental, Inc.,, 95 F.3d 123, 128 (2d Cir. 1996). In deciding
the parties' cross-motions for final judgment, however, neither
side enjoys such an advantage.
II. Rights and Remedies upon Judicial Review of Agency Action
The Court makes a preliminary observation regarding the nature
of remedies available to plaintiffs in a citizen suit for
judicial review of administrative agency action. While a
discussion of remedies may seem premature at this stage, prior to
adjudication of plaintiffs' claims, the Court feels it is
necessary to correct some misconceptions held by plaintiffs, and
to establish a framework for addressing the merits of their
In their papers, plaintiffs refer to questions of defendants'
"liability." See. e.g.,
Pls.' Br. at 38-39. The Court must state at the outset
that defendants cannot be, in any sense, "liable"
to plaintiffs under the Clean Water Act or the Administrative
Procedure Act, as neither statute provides plaintiffs with
substantive rights. See. e.g., Nebraska Health Care Ass'n, Inc.
v. Dunning,, 575 F. Supp. 176 (D. Neb. 1983) ("An agency's actions
cannot violate this section; rather, they are to be reviewed
under this section.") Plaintiffs have standing to petition for
judicial enforcement of EPA's statutory duties, and the Court has
jurisdiction to hear their claims. The Court's power in this
context is limited, however, to vacating unlawful agency action
and remanding to the agency for further proceedings, or
compelling agency action that has been unlawfully withheld or
unreasonably delayed. See generally 5 U.S.C. § 706. These
considerations inform two critical issues in this case.
First, plaintiffs make frequent reference in their pleadings to
the long history of failure by EPA and New York State to perform
their duties under the Clean Water Act. Although evidence of this
sort may be relevant to the reliability of these entities'
promises of future compliance, plaintiffs are wrong to imply that
recent efforts by EPA at compliance are per se insufficient to
discharge EPA's statutory duties because of the agency's past
failings. As the Court's sole power in this context is to require
EPA to conform its present conduct to the law, EPA's past
noncompliance is irrelevant to the question of agency's present
compliance, and to whether the Court will grant the narrow relief
prescribed by the CWA and the APA. Plaintiffs did not, and could
not, acquire rights by virtue of EPA's past failings, and the
Court cannot, accordingly, provide any relief that goes beyond
ensuring EPA's present compliance with statutory mandates.
Furthermore, plaintiffs suggest that "issues of relief can be
addressed separately from the issue of liability." Pls.' Br. at
38-39; see also Pls.' Repl. Br. at 34 ("[S]hould this Court find
in Plaintiffs' favor on liability, the parties should be directed
to submit proposed final orders and schedules to this Court
within 30 days, after consultation with one another and good
faith efforts to come up with a mutually agreeable order and
timetable.") Because liability is a concept foreign to judicial
review of agency action, see supra, plaintiffs are clearly
misguided in proposing that the Court make a generalized
finding of "liability" and direct the parties to agree upon an
appropriate remedy. If the Court finds that EPA failed to comply
with either the CWA or the APA, the remedy is implicit in the
breach: the Court must compel EPA's compliance with its statutory
With these considerations as a backdrop, the Court proceeds to
consider the merits of plaintiffs' seven remaining claims in this
III. Failure to Deem New York State's Alleged Inaction a "Constructive
Submission" of Deficient TMDLs and to Promulgate Appropriate TMDLs
In Claims Six and Seven of their complaint, plaintiffs seek
review under the Administrative Procedure Act, 5 U.S.C. § 706,
of EPA's alleged failure to deem New York State's slow
progress in promulgating TMDLs a "constructive submission" of
deficient TMDLs, and its failure, in turn, to reject this
deficient submission and promulgate its own TMDLs for the State.
Adopting the doctrine introduced by the Seventh Circuit in
Scott v. City of Hammond, Ind.,, 741 F.2d 992, 994 (7th Cir. 1984)
[hereinafter, "Scott"], the Court in NRDC held that New York
State's failure to submit proposed TMDLs to EPA in a timely
manner could constitute a "constructive submission" of inadequate
TMDLs, which in turn might trigger EPA's duty to intervene under
the Clean Water Act.
The Court must now determine whether EPA's failure to declare a
"constructive submission" by New York State, and ultimately to
promulgate TMDLs in its stead, requires the Court to compel
agency action under the Administrative Procedure Act. In NRDC II,
the Court held that Claims Six and Seven properly state a cause
of action under the APA, see NRDC II, 30 F. Supp.2d at 379, and
denied defendants' motion for summary judgment on these claims.
The Court observed, however, that recent progress made by New
York State and EPA in developing TMDLs for the State was
"certainly probative as to whether New York State has taken
action sufficient to prevent EPA from being considered in
violation of § 706." Id. The Court continued, "Assuming EPA's
duty to intervene has been triggered, the nature and extent of
that duty must be assessed in light of continuing developments,
including progress in state efforts to submit TMDLs. It may be
the case, for example, that sufficient state progress after a
period of delinquency could reduce the extent of EPA intervention
required or even render the need for intervention altogether
moot." Id. The Court must now decide whether EPA's omission to
deem New York State's delay in promulgating TMDLs a "constructive
submission" is arbitrary, capricious, or otherwise not in
accordance with law, in contravention of 5 U.S.C. § 706(2)(A).
See Fourth Am. Compl. at ¶ 54. The Court must also decide
whether EPA unlawfully withheld or unreasonably delayed agency
action, in contravention of 5 U.S.C. § 706(1). See id.
A. Agency Action Arbitrary, Capricious or Otherwise Not in
Accordance with Law
"Section 706(2)(A) requires a finding that the actual choice
made was not `arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law."' Citizens to Preserve
Overton Park. Inc. v. Volpe, 401 U.S. 402, 416 (1971) (quoting
5 U.S.C. § 706(2)(A)). To make this finding, a court "must
consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment." Id. Moreover, "[a]lthough this inquiry into the facts
is to be searching and careful, the ultimate standard of review
is a narrow one. The court is not empowered to substitute its
judgment for that of the agency." Id. An agency action can be set
aside "if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view
or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,, 463 U.S. 29, 43
(1983); see also Cellular Phone Taskforce v. FCC, 205 F.3d 82,
(2d Cir. 2000); Henley v. FDA,, 77 F.3d 616, 620 (2d Cir.
1996); City of New York v. Shalala,, 34 F.3d 1161, 1167 (2d Cir.
"`The reviewing court must take into account contradictory
evidence in the record, but the possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's finding from being supported by
substantial evidence.' When an agency makes a decision in the
face of disputed technical facts, `[a] court must be reluctant to
reverse results supported by . . . a weight of considered and
carefully articulated expert opinion.'" Cellular Phone Taskforce,
205 F.3d at 89 (internal citations omitted). Plaintiffs bear
the burden of overcoming the presumption of validity of EPA's
actions. See, e.g., Environmental Defense Fund, Inc. v. Costle,
657 F.2d 275, 283 (D.C. Cir. 1981).
The Court made clear in NRDC II that New York State's failure
to submit proposed TMDLs to EPA for approval would, after an
unspecified period of time, trigger EPA's duty to declare a
"constructive submission" of inadequate TMDLs by the State, and
trigger EPA's further duty to approve or disapprove this
"constructive submission" within 30 days. See NRDC II,
30 F. Supp.2d at 376-78; see also 33 U.S.C. § 1313(d)(2).
Defendants contend that because 5 U.S.C. § 704 allows
review of "final agency action" only, EPA's alleged failure to
act is unreviewable under the APA. Defendants make the
syllogistic argument that the failure to perform an action is
never final because there is always a possibility that it will be
performed. See Defs.' Br. at 27. Defendants' argument has a
surface appeal that disappears on further analysis of the
language of the APA and judicial precedent. The APA itself
includes "failure to act" in its definition of "agency action."
5 U.S.C. § 551(13). Moreover, the courts have held that agency
inaction does, after some period of time, amount to final agency
action. See, e.g., Sierra Club v. Thomas, 828 F.2d at 793
("[A]gency inaction may represent effectively final agency action
that the agency has not frankly acknowledged"); Public Citizen
Health Research Group v. FDA, 740 F.2d 21, 32 (D.C. Cir. 1984)
("At some point administrative delay amounts to a refusal to
act, with sufficient finality and ripeness to permit judicial
review.") Thus, defendants cannot avoid judicial review with
their "final action" defense.
On the merits of Claim Six, plaintiffs argue that, despite
recent progress by EPA and the State in establishing TMDLs for
New York, the State's failure to promulgate and submit TMDLs for
EPA approval over the past two decades has undoubtedly triggered
EPA's so-called "deeming duty," i.e., the duty to declare a
"constructive submission" of no TMDLs. Defendants maintain that
EPA's "deeming duty" has not been triggered, as New York State
has made steady progress in developing its TMDL program over the
past two decades. Defendants argue that, under the constructive
submission doctrine, EPA's "deeming duty" arises only in the face
of complete nonfeasance by the State; i.e., in order to declare a
constructive submission of inadequate TMDLs, EPA must conclude
that the State is ignoring its TMDL obligation entirely.
Defendants claim that the administrative record amply supports
their conclusion that New York is making progress in formulating
TMDLs, and that an agency intervention that amounts to a vote of
no confidence is inappropriate and potentially counterproductive.
The Court agrees.
Upon review of the administrative record and joint appendix of
documents submitted by the parties, the Court is fully satisfied
that EPA's decision not to declare a "constructive submission" of
no TMDLs by New York State is supported by the record, and is
clearly not arbitrary, capricious, or contrary to law.
EPA Administrator Carol M. Browner, a named defendant in this
suit, has frankly acknowledged what some scholarly observers had
previously suggested:*fn4 that the TMDL program was consciously
neglected by EPA until recent years, while resources were
dedicated to other components of EPA's water quality control
efforts under the CWA. See "Testimony of Carol Browner," Feb. 23,
2000, 2000 WL 11068367 (before the Senate Committee on Agriculture)
[hereinafter, "Browner Testimony"].
The TMDL program was designed to provide a safety
net, catching water bodies that were not protected
or restored by the implementation of the range of
general, broadly applicable, pollution control
programs authorized in the Clean Water Act.
Until the early 1990's, however, EPA and States gave
top priority to implementing these general clean
water programs and gave lower priority to the more
focused restoration authorities of the TMDL program.
As a result, relatively few TMDLs were developed and
many State lists ...