Conservation Law Foundation v. Pruitt, No. 17-1166 (1st Cir. 2018)Annotate this Case
The First Circuit affirmed the dismissal of Plaintiffs’ two suits against the Environment Protection Agency (EPA), holding that the EPA’s role in developing and approving several total maximum daily loads (TMDLs) in Massachusetts and Rhode Island did not constitute a decision that required the EPA to send notices under 40 C.F.R. 124.52(b), a regulation promulgated under the Clean Water Act (Act).
In this case, Plaintiffs argued that, in helping to develop and in approving the TDMLs at issue, the EPA made certain determinations that triggered a duty to send notices in compliance with 40 C.F.R. 124.52(b). The lower courts found that these suits had no toehold in the Act’s limited authorization of citizen suits against the EPA, which is otherwise entitled to sovereign immunity. The First Circuit disagreed, holding (1) the EPA’s approval of the TMDLs was not a decision that an individual permit was required within the meaning of the statute; (2) the EPA’s approval of the TMDLs did not therefore trigger the notice requirement; and (3) consequently, the complaints alleged no failure by the EPA to perform a nondiscretionary duty.