Petition for Writ of Certiorari — City of Taunton, Massachusetts, Petitioner v. Environmental Protection Agency

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------CITY OF TAUNTON, MASSACHUSETTS,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------JOHN C. HALL

HALL & ASSOCIATES

1620 I Street, N.W., Suite 701

Washington, D.C. 20006

(202) 463-1166

jhall@hall-associates.com

Counsel for Petitioner

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

The EPA issued an NPDES permit to Taunton,

Massachusetts imposing state of the art total nitrogen

(“TN”) reduction requirements. EPA’s action was

premised on the claim that TN was causing a narrative

criteria violation (excessive algal growth) leading to

low dissolved oxygen (DO) in the Upper Taunton Estuary. Taunton challenged this action on regulatory and

scientific grounds because, inter alia, the available

data showed no meaningful relationship between DO,

algal growth and TN in the Upper Taunton Estuary.

The First Circuit, citing Chevron and Auer, accepted, without detailed review, EPA’s statutory and

regulatory interpretations that (a) EPA did not have

to demonstrate “causation” to impose stringent TN

limitations when implementing a state narrative

standard, and (b) EPA’s findings are upheld if there is

a “mere possibility” they are correct. The Court also

concluded it was not empowered to “second guess” any

of EPA’s technical conclusions Taunton challenged.

The Questions Presented are:

(1) Do the Clean Water Act and NPDES rules require

a “causation” demonstration beyond a “mere possibility” to impose more restrictive effluent limitations

when applying Massachusetts’s narrative criteria?

(2) Should this Court narrow or overturn its rulings

in Chevron and Auer, to ensure meaningful, independent judicial review because those decisions

are being used to create extreme deference in reviewing agency action, raising substantive due

process concerns?

ii

PARTIES TO THE PROCEEDINGS BELOW

Petitioner is the City of Taunton, Massachusetts

(“Taunton” or “the City”), a municipal entity subject to

regulation under the CWA.

Respondent is the U.S. Environmental Protection

Agency (“EPA” or “the Agency”), a federal administrative agency of the United States, which was created for

the purpose of protecting human health and the environment in accordance with the laws passed by Congress.

There were no intervenors in the proceeding below. However, the State of Rhode Island did file an amicus brief on behalf of Respondent, EPA.

CORPORATE DISCLOSURE STATEMENT

As Petitioner City of Taunton is a governmental

entity, it is not required to file a corporate disclosure

statement under Supreme Court Rule 29.6. By way of

further response, Taunton avers that it has no parent

companies, and there are no other publicly-held companies that have a 10% or greater ownership interest

in Taunton. Additionally, Taunton avers that it has no

outstanding shares or debt securities in the hands of

the public.

iii

TABLE OF CONTENTS

Page

Question Presented ................................................

i

Parties to the Proceedings Below ...........................

ii

Corporate Disclosure Statement ............................

ii

Table of Contents ....................................................

iii

Table of Authorities ................................................

v

Petition for a Writ of Certiorari .............................

1

Opinions Below .......................................................

8

Jurisdiction .............................................................

8

Statutory and Regulatory Provisions Involved .....

8

Statement ...............................................................

9

A.

Statutory and Regulatory Background .....

9

1. CWA Provisions Governing Establishment of Water Quality Based Limits

and Water Quality Criteria are “Cause

and Effect” Based ................................

9

2. NPDES

Regulations

Governing

WQBELs .............................................. 12

3. Case Specific Causation Demonstration

is Required in Nutrient Regulation ...... 16

B.

The First Circuit’s Decision ...................... 18

REASONS FOR GRANTING THE PETITION ....

A.

24

The First Circuit’s Decision is Contrary to

The Clean Water Act and Failed to Apply

Chevron ..................................................... 24

iv

TABLE OF CONTENTS – Continued

Page

1. The CWA is a Causation-Based Statute ........................................................ 24

2. Accepting EPA’s “Some degree of certainty greater than a mere possibility”

burden of proof and refusal to assess

scientific validity of EPA’s approach

fundamentally alters the CWA and

APA review .......................................... 30

B.

This Case Has Immense National Importance ..................................................... 33

Conclusion............................................................ 36

APPENDIX

Opinion, United States Court of Appeals for the

First Circuit (July 9, 2018) .............................. App. 1

Judgment, United States Court of Appeals for

the First Circuit (July 9, 2018) ...................... App. 43

Relevant Regulatory Provisions........................ App. 45

Maps and Charts Describing the Upper Taunton

Estuary ........................................................... App. 52

v

TABLE OF AUTHORITIES

Page

CASES

Allentown Mack Sales & Service, Inc. v. NLRB,

522 U.S. 359 (1998) ...................................................4

Am. Paper Inst. v. EPA, 890 F.2d 869 (7th Cir.

1989) ........................................................................34

American Iron & Steel Inst. v. EPA, 115 F.3d 979

(D.C. Cir. 1997) ........................................................10

Ark. v. Okla., 503 U.S. 91 (1992) .................................16

Auer v. Robbins, 519 U.S. 452 (1997) .................. passim

Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87

(1983) ............................................................. 4, 24, 33

Bowman Transp., Inc. v. Ark.-Best Freight Sys.,

Inc., 419 U.S. 281 (1974) .........................................30

Chem. Mfrs. Ass’n v. EPA, 28 F.3d 1259 (D.C. Cir.

1994) ........................................................................16

Chevron v. NRDC, 467 U.S. 837 (1984) .............. passim

City of Dover v. EPA, 36 F. Supp. 3d 103 (D.D.C.

2014) .................................................................. 10, 25

Decker v. Northwest Envtl. Def. Ctr., 568 U.S. 597

(2013) .........................................................................7

EPA v. California ex rel. State Water Resources

Control Bd., 426 U.S. 200 (1976)...............................9

Genuine Parts Co. v. EPA, 890 F.3d 304 (D.C. Cir.

2018) .................................................. 6, 29, 30, 31, 32

Hodel v. Va. Surface Mining & Reclamation

Ass’n, 452 U.S. 264 (1981) .......................................24

vi

TABLE OF AUTHORITIES – Continued

Page

Humana of Aurora, Inc. v. Heckler, 753 F.2d 1579

(10th Cir. 1985)........................................................19

In re City of Taunton, Dep’t Public Works,

NPDES Appeal No. 15-08 (EAB 2016) .....................2

Iowa League of Cities v. EPA, 711 F.3d 844 (8th

Cir. 2013) ............................................................. 7, 29

Leather Indus. of Am. v. EPA, 40 F.3d 392 (D.C.

Cir. 1994) ............................................... 10, 11, 16, 32

MacClarence v. EPA, 596 F.3d 1123 (9th Cir.

2010) ........................................................................15

Michigan v. EPA, 135 S. Ct. 2699 (2015) ....... 14, 25, 35

Motor Vehicle Mfrs. Assn. of United States, Inc. v.

State Farm Mut. Automobile Ins. Co., 463 U.S.

29 (1983) .......................................................... passim

NAMF v. EPA, 719 F.2d 624 (3d Cir. 1983) ................11

NRDC v. Metro. Water Reclamation Dist. of

Greater Chi., 175 F. Supp. 3d 1041 (N.D. Ill.

Mar. 31, 2016) ........................................ 12, 14, 15, 26

Natural Resources Defense Council v. EPA, 16

F.3d 1395 (4th Cir. 1993) .........................................10

Natural Resources Defense Council v. EPA, 915

F.2d 1314 (9th Cir. 1990) ................................... 10, 14

Nat’l Gypsum Co. v. EPA, 968 F.2d 40 (D.C. Cir.

1992) ........................................................................31

Nat’l Mining Ass’n v. Jackson, 880 F. Supp. 2d

119 (D.D.C. 2012) ....................................................15

vii

TABLE OF AUTHORITIES – Continued

Page

Ohio Valley Envtl. Coalition, Inc. v. Fola Coal Co.,

LLC, 82 F. Supp. 3d 673 (S.D. W. Va. 2015) .... passim

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199

(2015) .........................................................................5

Pud. No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700

(1994) .........................................................................9

S. Cal. Alliance of Publicly Owned Treatment

Works v. EPA, 853 F.3d 1076 (9th Cir. 2017) ..........34

Seacoast Anti-Pollution League v. Costle, 572

F.2d 872 (1st Cir. 1978) ...........................................15

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir.

1981) ..........................................................................5

Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923 (5th

Cir. 1998) ..................................................... 12, 16, 19

Thomas v. Jackson, 581 F.3d 658 (8th Cir. 2009) .........9

United States v. Knott, 256 F.3d 20 (1st Cir.

2001) ........................................................................13

United States v. Morton, 467 U.S. 822 (1984) ............28

Upper Blackstone Water Pollution Abatement

Dist. v. EPA, 690 F.3d 9 (1st Cir. 2012) .....................6

Utility Solid Waste Activities Group v. EPA, D.C.

Cir., No. 15-1219, August 21, 2018 .........................28

White Stallion Energy v. EPA, 748 F.3d 1222

(D.C. Cir. 2014) .................................................. 14, 15

Whitman v. American Trucking, 531 U.S. 457

(2001) .......................................................................10

viii

TABLE OF AUTHORITIES – Continued

Page

STATUTES AND REGULATIONS

Administrative Procedure Act, 5 U.S.C. §§ 551

et seq. .........................................................................4

Clean Water Act § 509(b)(1)(F) ................................. 8, 9

28 U.S.C. § 1254(1) ........................................................8

33 U.S.C. § 1311(a) ........................................................9

33 U.S.C. § 1311(b)(1)(C) ...........................3, 9, 13, 16, 25

33 U.S.C. § 1313(c)(2)(A) ...............................................9

33 U.S.C. § 1313(d) ......................................................11

33 U.S.C. § 1314(a) ......................................................14

33 U.S.C. § 1342(a) ........................................................9

33 U.S.C. § 1342(a)(1)-(2) ...................................... 12, 35

33 U.S.C. § 1361(a) ......................................................12

33 U.S.C. § 1369(b)(1)(F) ......................................... 8, 18

40 C.F.R. § 122.44 ..................................................... 3, 8

40 C.F.R. § 122.44(d) ........................................... passim

40 C.F.R. § 122.44(d)(1)(i) ...........................................12

40 C.F.R. § 122.44(d)(1)(i)-(ii) .....................................12

40 C.F.R. § 122.44(d)(1)(vii) ..........................................6

40 C.F.R. § 122.44(d)(vi)(A)..................................... 6, 27

40 C.F.R. § 122.44(d)(vii)(A) ................................... 6, 27

40 C.F.R. § 130.7(b)(4).................................................24

40 C.F.R. § 131.1 .........................................................24

ix

TABLE OF AUTHORITIES – Continued

Page

40 C.F.R. § 131.3(b) .....................................................10

40 C.F.R. § 131.6 .........................................................24

40 C.F.R. § 131.7(b)(4).................................................11

40 C.F.R. § 131.11 .......................................................24

40 C.F.R. § 131.11(b) ....................................... 10, 14, 26

40 C.F.R. § 131.11(b)(1)(iii) .........................................14

314 CMR 4.00 .............................................................11

314 CMR 4.05(a) .........................................................27

314 CMR 4.05(5) .........................................................11

314 CMR 4.05(5)(a) .....................................................11

54 Fed. Reg. 23,873 (June 2, 1989) ....................... 13, 15

54 Fed. Reg. 23,877 (June 2, 1989) .............................14

65 Fed. Reg. 24,641 (April 27, 2000) ..........................14

80 Fed. Reg. 51,020 (Aug. 21, 2015) ...........................14

OTHER AUTHORITIES

EPA Toolkit of Resources............................................26

Guidelines for Deriving Numerical National

Water Quality Criteria for the Protection of

Aquatic Organisms and Their Uses, USEPA

1985 ................................................................... 10, 14

Nutrient Criteria Technical Guidance Manual –

Estuarine and Coastal Marine Waters, EPA822-B-01-003, October 2001....................................17

x

TABLE OF AUTHORITIES – Continued

Page

Nutrients in Estuaries: A Summary Report of the

National Estuarine Experts Workgroup 20052007 (November 2010) .................................. 1, 17, 29

Technical Guidance Manual for Developing Total Maximum Daily Loads, Book 2: Streams

and Rivers, Part 1: Biochemical Oxygen Demand/Dissolved Oxygen and Nutrients/Eutrophication, EPA-823-B-97-002, March 1997 .......17

Technical Support Document For Water Qualitybased Toxics Control, EPA-505-2-90-001,

March 1991..............................................................28

Using Stressor-Response Relationships to Derive

Numeric Nutrient Criteria, EPA-820-S-10001, November 2010.......................................... 18, 29

1

PETITION FOR A WRIT OF CERTIORARI

This case involves the level of proof and scope of

judicial review applicable when assessing whether

EPA’s issuance of an NPDES permit based on application of a state narrative standard, is arbitrary, capricious or otherwise not in accordance with the law. This

case provides clear proof that it is time for the Supreme Court to overturn or significantly narrow the

deference granted to review of administrative agency

action under Chevron v. NRDC, 467 U.S. 837 (1984)

and Auer v. Robbins, 519 U.S. 452 (1997).

Taunton discharges into the upper reaches of

the Taunton Estuary, a tributary of Mount Hope Bay.

Figure 1, App., at 52 (map).1 Estuarine systems are

hydrodynamically complex, and DO conditions are impacted by a host of factors. The primary issue in this

case was the existence of low DO in many areas of the

estuarine system below the Taunton discharge. Low

DO can occur due to a host of natural (stratification,

reduced reaeration, plant respiration) and maninduced factors (increased runoff/discharge of oxygen

demanding pollutants, excessive algal growth). Nutrients in Estuaries: A Summary Report of the National

1

Figure 1, App., at 52, shows where EPA’s effluent limit

analysis occurred in the Upper Taunton Estuary versus the location EPA used to select its narrative translator (numeric criteria

for TN). The site chosen to represent the Upper Taunton Estuary

was in a completely different water body type (bay versus tidal

river) with completely different watershed inputs – and completely different hydrodynamics, a high velocity tidal strait in

southeastern Mount Hope Bay.

2

Estuarine Experts Workgroup 2005-2007 (November

2010), at 12, 27.

EPA conducted an ipso facto effluent limitation

analysis considering none of these factors, identified as

impacting DO and algal growth in estuaries, when declaring that attainment of an ambient TN concentration of 0.45 mg/l was a proper implementation of the

state’s narrative standard and stringent nutrient limitations would eliminate low DO conditions in the estuary. Rather, EPA stated that the mere existence of

“elevated” algal growth and measurements of DO below applicable standards confirms that nutrients must

be regulated, and a stringent TN limitation is permissible. EPA asserted that, under applicable rules – 40

C.F.R. § 122.44(d) – the degree of record evidence

needed to uphold the selection of the 0.45 mg/l TN ambient criteria and 3 mg/l TN effluent limitation was

“some degree of certainty greater than a mere possibility” that the EPA’s approach is correct. EPA’s highly

deferential Environmental Appeals Board (EAB) review upheld EPA in all respects.2

2

The EAB explained that its decision to overturn a challenged permit is completely “discretionary.” In re City of Taunton,

Dep’t Public Works, NPDES Appeal No. 15-08 (EAB 2016) at 7-8.

To exercise such discretion, a permittee must show a “clearly erroneous finding of fact or conclusion of law.” Id. Even with such

demonstrations, the EAB’s authority to overturn a permit must

“only be sparingly exercised,” and ultimately the EAB will uphold

any EPA decision “as long as the permit issuer adequately explains its rationale and supports its reasoning in the administrative record.” Id. This extreme standard of review for reversal of

3

Taunton’s Circuit Court challenge rested not only

on the wording of the statute (33 U.S.C. § 1311(b)(1)(C)),

but also the adopted regulation (40 C.F.R. § 122.44(d))

and a plethora of EPA guidance discussing the factual/scientific information and analyses required to

confirm the specific numeric nutrient criteria and effluent limitation chosen by EPA were supported by

substantial evidence.

The First Circuit agreed with all of EPA’s statutory and regulatory positions – without a shred of

analysis, simply because EPA asserted that these

positions were the proper implementation of the Clean

Water Act and its adopted regulations – most notably

33 U.S.C. § 1311(b)(1)(C) and 40 C.F.R. § 122.44(d).

The First Circuit decision referenced Chevron but

failed to assess the controlling language of 33 U.S.C.

§ 1311(b)(1)(C) and referenced Auer v. Robbins but

failed to review the regulatory history and language of

40 C.F.R. § 122.44. The First Circuit simply accepted

EPA’s statutory and regulatory interpretations, because the EAB (an arm of the agency) supported EPA’s

position in the Agency’s highly deferential administrative “hearing” below. App., at 18, 28, 30-31, 38, 39.

Regarding “technical” issues, the Court also abandoned any semblance of independent review, announcing “our standard of review . . . does not deputize us to

second guess EPA.” App., at 38. While EPA may typically be afforded increased deference on “complex”

EPA permit actions is evidenced by only 7% of EAB decisions from

2005-2015 being adverse to EPA.

4

technical matters at the “frontiers of science” (Balt.

Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)), no

agency document or judicial analysis confirmed that

the issues presented were “complex” or at the “frontiers of science.”

***

Certiorari is plainly warranted to address the

proper level of judicial scrutiny that should occur in

review of EPA’s legal and technical findings. At its

heart, this case demonstrates that judicial review of

agency action under the Administrative Procedure Act,

5 U.S.C. §§ 551 et seq. (“APA”) has degraded significantly due to the broad deference now granted to

agencies to create new statutory and regulatory interpretations under Chevron and Auer. Such agency action, even when directly at odds with the adopted

statutory or regulatory language and longstanding

published regulatory guidance implementing the

adopted provisions, is now apparently all but immune

from review in the First Circuit.

“Federal administrative agencies are required to

engage in ‘reasoned decision making.’ ” Allentown

Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374

(1998) (internal quotation marks omitted). “Not only

must an agency’s decreed result be within the scope of

its lawful authority, but the process by which it reaches

that result must be logical and rational.” Ibid. It follows that agency action is lawful only if it rests “on a

consideration of the relevant factors.” Motor Vehicle

Mfrs. Assn. of United States, Inc. v. State Farm Mut.

5

Automobile Ins. Co., 463 U.S. 29, 43 (1983) (internal

quotation marks omitted) (“State Farm”). Thus, both

legal and technical findings are subject to probing judicial scrutiny.

The First Circuit’s support of a “whatever EPA

says, goes” decisionmaking process eviscerated any

meaningful APA review of agency actions and expanded deference even far beyond the Court’s Chevron

and Auer decisions. There was no independent review

of EPA’s legal, factual or technical positions, contrary

to State Farm and its progeny. The First Circuit Court

simply looked to see whether EPA disagreed with the

Petitioner’s positions (legal, factual or technical) – if so,

EPA’s position wins. That approach is not the proper

implementation of “arbitrary and capricious” review

criteria under State Farm, Chevron, Auer or longstanding jurisprudence of the Circuit Courts in dealing with

technical issues.

“Even in cases where an agency’s interpretation

receives Auer deference, however, it is the court that

ultimately decides whether a given regulation means

what the agency says.” Perez v. Mortg. Bankers Ass’n,

135 S. Ct. 1199, 1208 n.4 (2015). Moreover, when challenged, agencies are required to provide a “complete

analytic defense” and document “substantial evidence”

supporting their position and demonstrate that the

challenges to technical findings are misplaced. Sierra

Club v. Costle, 657 F.2d 298, 333 (D.C. Cir. 1981) (“The

technical complexity of the analysis does not relieve

6

the agency of the burden to consider all relevant factors. . . .”).3,4

Further, by expanding and compounding heightened deference to all aspects of EPA’s internal review

(EAB) and any “technical” issues, this First Circuit decision renders appellate APA review illusory. However,

there is no cited statutory basis justifying the First

Circuit’s highly restricted review. Technical issues related to ecological impairment are addressed by district and circuit courts routinely (Endangered Species

Act review of biological opinions, Clean Air Act review

of human health impact analysis, Superfund cases

evaluating sufficiency of remedial measures to address

ecological and human health threats). It is not apparent how or why “extreme deference” is needed to review scientific “facts” (e.g., Does the data for the

Taunton system indicate that regulating TN will significantly improve minimum DO or not? Did EPA

demonstrate that its selection of a 0.45 mg/l TN standard would “ensure” narrative standard compliance as

required by 40 C.F.R. § 122.44(d)(1)(vii)?).

The APA established the arbitrary and capricious

standard of review to grant a level of deference to

3

One recent example of a more thorough review of EPA technical findings can be found in Genuine Parts Co. v. EPA, 890 F.3d

304 (D.C. Cir. 2018) (“Genuine Parts”).

4

While repeatedly referencing its earlier decision in Upper

Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9

(1st Cir. 2012), the First Circuit nowhere included the detailed,

independent analysis of technical and regulatory findings that occurred in Upper Blackstone.

7

agency decisionmaking. There is no indication that the

APA intended courts to increase such deference by creating new categories of expanded deference. This case

is a byproduct of the creeping deference to agency action that has been created by judicial decisions, not any

adopted statute. Such “judicial legislation” has seriously eroded substantive due process rights and needs

reconsideration by the Court. As stated by Judge

Gruender in the Eighth Circuit Iowa League of Cities

v. EPA, 711 F.3d 844 (8th Cir. 2013) (“Iowa League”)

decision, “[a]s agencies expand on the often broad language of their enabling statutes by issuing layer upon

layer of guidance documents and interpretive memoranda, formerly flexible strata may ossify into rule-like

rigidity. An agency potentially can avoid judicial review through the tyranny of small decisions.” However,

as Justice Scalia stated, “He who writes a law must not

adjudge its violation.” Decker v. Northwest Envtl. Def.

Ctr., 568 U.S. 597 (2013) (dissent) (assessing the separation of powers issues inherent in Auer deference).

The agency cannot be allowed to be both the creator

and judge of facts and law. Reversal or significant narrowing of the jurisprudence that allowed the Taunton

decision to occur (e.g., Auer, Chevron) is needed to accord meaningful review of agency actions to adversely

affected parties.

This Court should grant the City of Taunton’s petition for a writ of certiorari to correct the judgment of

the U.S. Court of Appeals for the First Circuit and clarify the level of judicial scrutiny required under the APA.

------------------------------------------------------------------

8

OPINIONS BELOW

The decision of the Court of Appeals for the First

Circuit (App., at 1) dismissing Taunton’s petition is reported at 895 F.3d 120.

------------------------------------------------------------------

JURISDICTION

The First Circuit’s original dismissal was entered

on July 9, 2018. App., at 43. Under Rule 13 of this Court

allowing 90 days after denial of petition, the City’s Petition is timely. This Court’s jurisdiction rests on 28

U.S.C. § 1254(1).

------------------------------------------------------------------

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The primary statutory provision in this case is 33

U.S.C. § 1369(b)(1)(F), Clean Water Act § 509(b)(1)(F).

The primary regulatory provision in this case is 40

C.F.R. § 122.44. This provision has been appended to

this petition. See App., at 45.

------------------------------------------------------------------

9

STATEMENT

A. Statutory and Regulatory Background

1. CWA Provisions Governing Establishment of Water Quality Based Limits and

Water Quality Criteria are “Cause and

Effect” Based

Under the Clean Water Act (“CWA”), point source

dischargers to waters of the United States must be

issued National Pollutant Discharge Elimination System (“NPDES”) permits. See 33 U.S.C. §§ 1311(a),

1342(a). Section 301(b)(1)(C) authorizes EPA to establish water quality-based limitations (“WQBELs”) that

are “necessary to meet water quality standards

[“WQS”].” 33 U.S.C. § 1311(b)(1)(C). Pud. No. 1 v. Wash.

Dep’t of Ecology, 511 U.S. 700 (1994). Under the Act

and implementing regulations, WQS provide a “supplementary basis” for dischargers to “be further regulated to prevent water quality from falling below

acceptable levels” (see EPA v. California ex rel. State

Water Resources Control Bd., 426 U.S. 200, 205 n.12

(1976)), and consist of the designated uses of the waterbody and the numeric or narrative criteria adopted

to protect those uses. 33 U.S.C. § 1313(c)(2)(A); see also

Thomas v. Jackson, 581 F.3d 658, 611 (8th Cir. 2009)

(“The water quality standards comprise: . . . (2) water

quality criteria defining the amounts of pollutants that

the water can contain without impairment of the designated uses . . . ”).

The narrative or numeric criteria represent the

threshold level (i.e., concentration) at which a

10

pollutant has a documented significant adverse impact

and that, when attained, will prevent such impairment. 40 C.F.R. § 131.3(b) (definition of criteria); see

also Guidelines for Deriving Numerical National Water

Quality Criteria for the Protection of Aquatic Organisms and Their Uses, USEPA 1985, at 15, 16, 21. American Iron & Steel Inst. v. EPA, 115 F.3d 979, 990 (D.C.

Cir. 1997); Natural Resources Defense Council v. EPA,

16 F.3d 1395, 1400-1402 (4th Cir. 1993); Natural Resources Defense Council v. EPA, 915 F.2d 1314, 1317

(9th Cir. 1990) (“[T]he state was to determine the ‘criteria’ for each segment – the maximum concentrations

of pollutants that could occur without jeopardizing the

use.”); City of Dover v. EPA, 36 F. Supp. 3d 103, 108

(D.D.C. 2014) (“[s]tandards describe the maximum

amount of pollutants that waters can contain before

their designated use is considered impaired.”); accord

Leather Indus. of Am. v. EPA, 40 F.3d 392, 401 (D.C. Cir.

1994) (vacating chromium standards for sewage

sludge because they were not based on a documented

impairment threshold).5 All such numeric criteria

must be demonstrated to be “scientifically defensible.”

40 C.F.R. § 131.11(b).

5

This Court addressed a similar impairment threshold issue

in an analogous discussion on the establishment of air quality

standards. See Whitman v. American Trucking, 531 U.S. 457

(2001). Human health standards are set at a documented impairment threshold – “requisite to protect the public health.” Id. at

465. The Court interpreted “requisite” to mean “sufficient, but not

more than necessary. . . . that is, not lower or higher than necessary.” Id. at 473, 476 (internal quotations omitted).

11

Courts have routinely observed that the CWA requires a causation demonstration to impose liability

and more stringent requirements. See NAMF v. EPA,

719 F.2d 624, 640 (3d Cir. 1983) (in discussing “cause

or contribute” language the court noted that “ . . . neither the language of the Act nor intent of Congress appears to contemplate liability without causation.”);

Leather Industries, 40 F.3d at n.14 (the Act “does not

give EPA blanket one-way ratchet authority to tighten

standards”). EPA’s Section 303(d) (33 U.S.C. § 1313(d))

rules governing impairment listings (list of water

bodies targeted for additional pollutant reduction)

specifies that the state agency must identify “the

pollutant causing or expected to cause a violation

of applicable water quality standards.” 40 C.F.R.

§ 131.7(b)(4). The applicable narrative criteria of the

Commonwealth of Massachusetts, found at 314 CMR

4.05(5), have an express causation demonstration requirement to declare a narrative standard violation

exists that must be remedied.6

6

“Unless naturally occurring, all surface waters shall be free

from nutrients in concentrations that would cause or contribute

to impairment of existing or designated uses and shall not exceed

the site specific criteria developed in a TMDL or as otherwise

established by the Department pursuant to 314 CMR 4.00. Any

existing point source discharge containing nutrients in concentrations that would cause or contribute to cultural eutrophication,

including the excessive growth of aquatic plants or algae, in any

surface water shall be provided with the most appropriate treatment as determined by the Department, including, where necessary, highest and best practical treat HBPT for POTWs and Best

Available Technology (BAT) for non POTWs, to remove such nutrients to ensure protection of existing and designated uses.” 314

CMR 4.05(5)(a) (emphasis supplied).

12

Consequently, WQS and WQBELs are scientifically derived, harm/needs based requirements. They

are only imposed when it is demonstrated that they

are “necessary” to protect uses in a specific body of water (narrative criteria violation) or achieve applicable

numerical water quality objections. Texas Oil & Gas

Ass’n v. EPA, 161 F.3d 923, 927 (5th Cir. 1998); Ohio

Valley Envtl. Coalition, Inc. v. Fola Coal Co., LLC, 82

F. Supp. 3d 673, 687 (S.D. W. Va. 2015) (“Ohio Valley”);

NRDC v. Metro. Water Reclamation Dist. of Greater

Chi., 175 F. Supp. 3d 1041 (N.D. Ill. Mar. 31, 2016); see

also 40 C.F.R. § 122.44(d) (“necessary to . . . (1) achieve

water quality standards. . . .”).

2. NPDES Regulations Governing WQBELs

In establishing NPDES rules to implement CWA

requirements EPA is also required to ensure such

rules are “necessary” and “appropriate.” 33 U.S.C.

§§ 1342(a)(1)-(2); see also 33 U.S.C. § 1361(a). Under 40

C.F.R. § 122.44(d), a WQBEL is only required when

“necessary to . . . (1) achieve water quality standards.”

An NPDES permit is required to control pollutants

that EPA “determines are or may be discharged at a

level which will cause, have the reasonable potential to

cause, or contribute to an excursion above any State

water quality standard, including State narrative criteria for water quality.” 40 C.F.R. § 122.44(d)(1)(i). This

analysis requires EPA to account for “existing controls”

and other relevant site-specific physical conditions affecting the parameter of concern. See 40 C.F.R.

§ 122.44(d)(1)(i)-(ii).

13

Under the plain language of 40 C.F.R. § 122.44(d)

and 33 U.S.C. § 1311(b)(1)(C), WQBELs implementing

narrative standards must be “demonstrated” as “necessary” by the “permitting authority” based on sitespecific data/analyses using “reliable [ ] procedures.”7

The required analyses include (1) “demonstrat[ing]”

the pollutant of concern from “the discharge,” (2) “will

cause” or is projected to “cause,” (3) “an in-stream

excursion above a narrative or numeric criteria,”

(4) considering “existing controls,” and (5) when implementing a narrative criteria, the permit writer

“demonstrates” and “ensure[s]” that the “calculated

numeric water quality criterion” (e.g., 0.45 mg/l TN)

“will attain and maintain applicable narrative water

quality criteria and will fully protect the designated

uses.” 40 C.F.R. § 122.44(d).8 Like all regulatory

decisions, the narrative translator must be developed

using “scientifically defensible” methods and reliable

water quality impacts information. 40 C.F.R.

7

See, e.g., 54 Fed. Reg. 23,873 (June 2, 1989) “To determine

whether a discharge causes, has a reasonable potential to cause,

or contributes to an excursion above a water quality criterion, and

thus requires a water quality-based effluent limit, the permitting

authority must use reliable and consistent procedures.”

8

United States v. Knott, 256 F.3d 20, 28 (1st Cir. 2001) (using

Oxford and Webster’s to interpret statutory terms); see also Auer,

519 U.S. at 461 (using dictionary definitions to interpret regulatory terms). Based on Oxford and Webster’s definitions, “Demonstrate” means to “clearly show the existence or truth of

(something) by giving proof or evidence.” “Ensure” means to

“make certain something will occur or be the case.” “Cause”

means a “thing that gives rise to an action, phenomenon or condition.” And “Necessary” means “needed to be done.”

14

§ 131.11(b)(1)(iii).9 (Supra, at 12, NRDC v. Metro,

Ohio Valley).

The statutory and regulatory term “necessary” requires EPA to evaluate the factors and existing pollutant controls influencing the condition of concern to

confirm the need for further reductions by Taunton.

White Stallion Energy v. EPA, 748 F.3d 1222, 1231

(D.C. Cir. 2014); Michigan v. EPA, 135 S. Ct. 2699, 2705

(2015).10 Moreover, WQBELs for narrative criteria are

9

See 33 U.S.C. § 1314(a) (requiring EPA to use the latest scientific information in criteria development); see also 40 C.F.R.

§ 131.11(b) (“States must adopt those water quality criteria that

protect the designated use. Such criteria must be based on sound

scientific rationale and must contain sufficient parameters or constituents to protect the designated use.”); 80 Fed. Reg. 51,020,

51,028 (Aug. 21, 2015) (“Ultimately, states and authorized tribes

must adopt criteria that are scientifically defensible and protective of the designated use. . . .”); see also Guidelines for Deriving

Numerical National Water Quality Criteria for the Protection of

Aquatic Organisms and Their Uses, USEPA 1985, at 30 available

at https://www.epa.gov/sites/production/files/2016-02/documents/

guidelines-water-quality-criteria.pdf (water quality criteria are to

be based on “all available pertinent laboratory and field information” and “consistent with sound scientific evidence.”); see also

Natural Res. Def. Council v. EPA, 16 F.3d at 1398 (4th Cir. 1993)

(“The court agrees with EPA that its duty, under the CWA and

the accompanying regulations, is to ensure that the underlying

criteria which are used as the basis of a particular state’s water

quality standard, are scientifically defensible. . . .”). EPA has

made clear that the “scientifically defensible” requirement applies

to narrative criteria implementation also (65 Fed. Reg. 24,641

(April 27, 2000)).

10

This Court also addressed the statutory meaning of “necessary” in Michigan v. EPA, 135 S. Ct. 2699, 2705 (2015), reiterating EPA’s finding of a regulation as “necessary” “because the

imposition of the Act’s other requirements did not eliminate those

15

“used only where . . . a state has data showing that the

pollutant is present in the effluent at a concentration

that causes . . . or contributes to an excursion above an

applicable narrative . . . criterion.” 54 Fed. Reg. 23,877

(June 2, 1989) (emphasis added).11 Consequently, to

impose a specific WQBEL on a specific discharge

using narrative criteria, 40 C.F.R. § 122.44(d) requires

EPA to “demonstrate” by specific, not “generalized,”

analysis, using reliable data and methods, that the pollutants from this source are actually a material part of

a verified use impairment problem and reduction of

this source is necessary for its solution.12 This would,

naturally involve some demonstration regarding the

risks.” The D.C. Circuit has also relied on the same definition of

“necessary” in White Stallion Energy v. EPA, 748 F.3d 1222, 1231

(D.C. Cir. 2014) (EPA “found regulation ‘necessary’ because the

imposition of the Act’s other requirements did not eliminate these

risks.”).

11

The preamble to 40 C.F.R. § 122.44(d) was replete with

statements confirming the permit writers’ responsibility to

demonstrate “causation.” 54 Fed. Reg. 23,872-73. EPA included

the term “cause” 36 times in its preamble and 12 times in the rule,

clearly indicating the intent to include a causation element when

developing WQS.

12

Seacoast Anti-Pollution League v. Costle, 572 F.2d 872,

876-877 (1st Cir. 1978) (rejecting generalized analyses as basis

for regulatory decision); MacClarence v. EPA, 596 F.3d 1123, 1131

(9th Cir. 2010) (same); see also Nat’l Mining Ass’n v. Jackson, 880

F. Supp. 2d 119, 141 (D.D.C. 2012) (reversed on other grounds) (40

C.F.R. § 122.44(d) does not authorize EPA to presume impairment); Ohio Valley, 82 F. Supp. 3d at 687 (to find a pollutant-specific narrative violation EPA “first considered any confounding

factors that may be causing the impairment and ruled them

out.”); NRDC v. Metro. Water, 175 F. Supp. 3d 1041 (requiring

proof algal growth was reason for the low DO condition present).

16

degree of impact from the discharge, since de minimis

impacts are not regulated. Ark. v. Okla., 503 U.S. 91, 96

(1992).

Consequently, dischargers may receive a narrative

criteria-based WQBEL, but only once the pollutant is

“demonstrated” to be responsible for the ecological impairments at issue and the limitation is set at the level

“necessary” to attain applicable WQSs. See 33 U.S.C.

§ 1311(b)(1)(C); 40 C.F.R. § 122.44(d). In accordance

with State Farm, when an agency method or model is

challenged, EPA must provide a “full and analytical defense of its model” and show “there is a rational relationship between the model and the known behavior of

the pollutant to which it is applied.” See Chem. Mfrs.

Ass’n v. EPA, 28 F.3d 1259, 1265 (D.C. Cir. 1994); see

also Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 935

(5th Cir. 1998) (EPA may not rely on a flawed or inaccurate study to render decisions). EPA may not base its

decisions on “sheer guess work.” Leather Indus. of Am.

v. EPA, 40 F.3d 392, 408 (D.C. Cir. 1994).

3. Case Specific Causation Demonstration

is Required in Nutrient Regulation

The regulation of nutrients is commonly accomplished through narrative standards because nutrients, unlike toxics, do not have a direct negative impact

on aquatic life and waterbody responses are highly

site-specific, especially within estuaries:

In the case of nutrients it is understood that

there is a great deal of variability in inherent

17

nutrient levels and the biotic responses to nutrients. This natural variability is due to differences in geology, climate and waterbody

type. Because of that variation, EPA has accepted that various types of waterbodies need

to be evaluated differently and that recommended nutrient concentration levels need

to reflect such a variation. Thus, nutrient criteria are not typically transferable from

[ . . . ] one type of estuary to another.

See Nutrients in Estuaries, at 3.

Due to the complex nature of estuaries and the

development of nutrient criteria within those waters,

the EPA created a manual, the Nutrient Criteria Technical Guidance Manual – Estuarine and Coastal

Marine Waters, EPA-822-B-01-003, October 2001, “to

facilitate an understanding of cause-and-effect relationships in these complex systems and serve as a

guide for nutrient criteria development. . . .” Id. at 1-1.

EPA guidance has repeatedly recognized the need for

site-specific data and analyses to confirm the causeand-effect relationships when developing nutrient

limitations. See also Technical Guidance Manual for

Developing Total Maximum Daily Loads, Book 2:

Streams and Rivers, Part 1: Biochemical Oxygen

Demand/Dissolved Oxygen and Nutrients/Eutrophication, EPA-823-B-97-002, March 1997, at 2-1

(“Knowledge of the quantitative cause-and-effect relationship between receiving water quality and pollutant

loads is the key to making reliable determinations of

the total loading capacity.”). Additional EPA guidance

“[r]ecogniz[es] cause-and-effect relationships between

18

nutrient input and general waterbody response is the

first step in mitigating the effects of cultural eutrophication.” See Using Stressor-Response Relationships to

Derive Numeric Nutrient Criteria, EPA-820-S-10-001,

November 2010 (“Stressor-Response Guidance”).

Thus, for non-arbitrary nutrient regulation to occur, it is apparent that EPA must demonstrate, with a

site-specific, scientifically defensible “causation” analysis that it has (1) properly derived an appropriately

protective numeric target value and (2) any established “necessary” limitations to achieve that value,

considering the physical, chemical and biological factors relevant to the waters in question.

B. The First Circuit’s Decision

Following the exhaustion of administrative remedies, the City of Taunton filed a petition for review in

the First Circuit, pursuant to 33 U.S.C. § 1369(b)(1)(F)

challenging procedural and substantive aspects of

EPA’s selection of the 0.45 mg/l TN narrative criteria

translator and imposition of a 3 mg/l TN limit in Taunton’s NPDES permit. This Petition for Certiorari only

addresses the Court’s handling of substantive challenges raised by the City.

Taunton’s substantive challenges were numerous,

including: EPA’s determination that nutrients were

causing low DO in the Taunton Estuary, EPA’s interpretation of 40 C.F.R. § 122.44(d), the methodology

used to select the 0.45 mg/l TN numeric translator,

19

EPA’s failure to assess or account for other nonnutrient and natural conditions that could cause low

DO to occur in the Upper Taunton system, the need to

demonstrate causation when regulating a pollutant

under a narrative standard, EPA’s failure to analyze

the available system data to verify that TN was, in fact,

causing elevated algal growth and low DO conditions

in the Upper Taunton Estuary, and failure to account

for current conditions in the system (i.e., reliance on a

decade old dataset collected before major nutrient reductions had been implemented broadly in the Narragansett Bay system).

Taunton explained the multiple reasons why the

selected “sentinel” method used by EPA to select the

0.45 mg/l TN numeric translator and calculate the

stringent TN effluent limitations, was fundamentally

flawed.13 Supra, at 1 n.1. These reasons included the

lack of documented reliability for this method in estuaries, the various major physical differences between

13

This included a letter from the creator of the method and

author of the Critical Indicators Report EPA was utilizing (Dr.

Brian Howes) informing EPA that “the existing data and studies

for the system would not support its [reference location MHB16

(see Map figure 1, App., at 52)] use as a valid sentinel site.”

Rather than address this comment, the First Circuit agreed it

could be struck from the record and ignored. But see Texas Oil &

Gas Ass’n v. EPA, 161 F.3d 929, 935 (5th Cir. 1998) (agency action

“cannot stand if it is based on a flawed, inaccurate, or misapplied

study.”); see also Humana of Aurora, Inc. v. Heckler, 753 F.2d

1579, 1583 (10th Cir. 1985) (“When an agency adopts a regulation

based on a study not designed for the purpose and which is limited and criticized by its authors on points essential to the use

sought to be made of it, the administrative action is arbitrary and

capricious and a clear error in judgment.”).

20

the two locations, and the fact that the chlorophyll-a

concentrations (the nutrient related factor that causes

low DO) were essentially identical at the two locations

– proving, at least under EPA’s simplistic analysis,

that nutrients were not creating excessive algal

growth or impairing DO, and the data for the Upper

Taunton system doesn’t indicate that TN has a material impact on DO or the level of algal growth present.

See App., 53, 54, Figure 2, 3.

The First Circuit began its analysis by first listing

all areas where it was required to grant EPA “deference”:

•

“This deference goes to the entire agency action, which here includes both the EPA’s permitting decision and the EAB’s review and

affirmance of that decision.” App., at 8. Deference applied to facts as well as EPA claims of

procedural compliance.

•

“Here, the scientific and technical nature of

the EPA’s decisionmaking increases our level

of deference.” Id.

•

“When an agency is acting ‘within its area of

special expertise, at the frontiers of science . . .

a reviewing court must generally be at its

most deferential.’ ” Id.

•

“We are particularly mindful that ‘where a

complex administrative statute, like those the

EPA is charged with administering, requires

an agency to set a numerical standard, courts

will not overturn the agency’s choice of a

21

precise figure where it falls within a ‘zone of

reasonableness.’ ” Id.

•

“We defer to [EPA’s] ‘reasonable interpretation’ of that statute [CWA].” Id.

•

“EPA enjoys greater deference still when interpreting its own regulations.” Id. at 9.

•

“[EPA’s] interpretation of those regulations

shall be ‘controlling unless plainly erroneous

or inconsistent with the regulation.’ ” Id.

•

“Where the agency follows the proper procedures and acts with a reasonable basis, both

its choice of scientific data and interpretation

and application of that data to real world conditions are entitled to deference.” Id. at 35.

•

“Our standard of review, once again, does not

deputize us to second guess EPA’s choice of

data.” Id. at 38.

Thus, the First Circuit employed a parade of deference to cover every aspect of Taunton’s appeal.

The First Circuit decision upheld EPA’s assertion

that to establish a 0.45 mg/l TN numeric criteria that

implements a state narrative standard and impose a

stringent “state of the art” TN effluent limitation, EPA

does not need to show that TN is actually the cause of

the low DO condition found to exist in the Upper Taunton Estuary or for that matter, how much impairments

will be remedied by stringently controlling TN. App., at

30-32. Specifically, the Court stated that “the EPA did

not need to show causation . . . to support its conclusion that the Taunton Estuary was nutrient impaired.”

22

App., at 30. Related to this “no causation demonstration required” position, the Court also accepted, without analysis, that EPA’s decisions need only be

supported by information showing “a mere possibility”

that EPA’s position is correct. EPA asserted this was

the proper interpretation of 40 C.F.R. § 122.44(d). App.,

at 23.

In accepting the EAB’s and EPA’s determination

that EPA does not need to show causation to support

nutrient impairment findings and impose stringent

nutrient effluent limitations, there was no analysis or

discussion of the comprehensive regulatory and statutory analysis raised by Taunton. App., at 30-32. The

Court simply recited full page quotes from the EAB decision as its justification for rejecting Taunton’s ten

and a half pages of arguments. Taunton’s arguments,

in accordance with State Farm, included analysis of

system data and graphs confirming no relationship

whatsoever between TN, algal growth and low DO in

the Upper Taunton Estuary. App., 53, 54, Figure 2, 3.

The arguments were rejected with no independent

analysis. App., at 31-32.

In assessing Taunton’s claim that the “sentinel

site” in lower Mount Hope Bay had no relevance, whatsoever, to conditions occurring in the Upper Taunton

Estuary (supra, at 1, n.1), the Court simply restated

EPA’s assertions holding that “the City’s objection to

the EPA’s reliance on data from MHB16 cannot be

squared with the principle that our review of agency

action must afford deference to the scientific judgments of the agency. . . .” App., at 35. Thus, the Court

23

afforded absolute deference to the agency on technical

issues without any discussion or analysis regarding

the specific flaws listed by Taunton. The Court rationalized such deference to the Agency because “in many

science-based policymaking contexts, under the CWA

the EPA is required to exercise its judgment even in

the face of some scientific uncertainty.” App., at 29.

Regarding EPA’s failure to consider new data and

evidence of improved existing conditions raised by

Taunton, the Court, again, repeated EPA’s arguments

and then stated “our standard of review, once more,

does not deputize us to second-guess the EPA’s choice

of data. . . .” App., at 38. Finally, the Court stated that

“neither the CWA nor EPA regulations permit the EPA

to delay issuance of a new permit indefinitely until better science can be developed, even where there is some

uncertainty in the existing data.” Id. Here, as expressed and submitted by Taunton, the data requested

to be considered was not some “better science” to be developed at some unknown date in the future, it has already been developed and submitted to the Agency for

consideration.

The administrative record before the Court clearly

showed the arbitrariness of EPA’s permitting decision.

However, the First Circuit dismissed all of the legal,

regulatory and technical arguments presented by the

City because “deference” applies to shield all of EPA’s

decisions from probing review. Utilizing such extreme

deference universally throughout the Opinion, the

First Circuit upheld EPA’s entire position with little or

24

no analysis, an approach that violated State Farm,

Chevron, Auer and Baltimore Gas.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

A. The First Circuit’s Decision is Contrary to

The Clean Water Act and Failed to Apply

Chevron

1. The CWA is a Causation-Based Statute

The First Circuit’s ruling that no causation

demonstration is necessary to impose a narrative

criteria-based WQBEL limitation is contrary to the

clear wording of the Act (Sections 301 and 303(c)) (requiring a demonstration the WQBEL is “necessary”

based on “scientifically defensible” information showing “effect” of pollutant on organism or endpoint of concern) (supra, at 9-16, discussing narrative/numeric

criteria and WQBEL development). These statutory requirements were also reflected in the adopted NPDES

and WQS rules (40 C.F.R. § 122.44(d) and 40 C.F.R.

§§ 130.7(b)(4), 131.1, 131.6 and 131.11) and the applicable state narrative standard itself (supra, at 11 n.6).

Had the Court conducted an independent review of the

statutory or regulatory language rather than simply

deferring to EPA’s claims, a different outcome should

have occurred.

The CWA is a science-based statute designed to

avoid adverse ecological impacts on our nation’s waters

based on interstate commerce clause authority. Supra,

at 9-12; see also Hodel v. Va. Surface Mining &

25

Reclamation Ass’n, 452 U.S. 264, 282 (1981) (“the

power conferred by the Commerce Clause [is] broad

enough to permit congressional regulation of activities

causing air and water pollution. . . .”). Under the Clean

Water Act, two approaches are used to accomplish

this goal – uniform technology-based pollutant reductions based on “categories” of discharge (municipalities

are regulated as “publicly owned treatment works”

(POTWs)) under Section 301(b)(1)(b) and when demonstrated “necessary,” more restrictive site-specific limitations to ensure WQS compliance under Section

301(b)(1)(C). CWA Section 301(b)(1)(C) expressly

states that imposition of more restrictive water quality-based limitations must be “necessary” to meet the

applicable water quality standards. This Court, in similar contexts, has discussed that the word “necessary”

means “the imposition of the Act’s other requirements

did not eliminate those risks.” Michigan v. EPA, 135

S. Ct. at 2705. Supra, at 14-15 n.10. This certainly

entails documented proof that (1) the pollutant of concern is the reason a condition exists and (2) regulating

the specific discharge is required to resolve the situation (if multiple sources of the pollutant are present).

That “causation” analysis is precisely what a total

maximum daily load (“TMDL”) analysis does under

Section 303(d) for waters listed as “impaired” for a specific pollutant under the Act. City of Dover v. EPA, 36

F. Supp. 3d 103, 109 (D.D.C. 2014) (“a TMDL . . . sets a

cap on the total amount of [a pollutant] that can be

added to a body of water from all sources per day before

it will no longer meet state water quality standards.”).

26

EPA itself has published literally hundreds of

technical documents that explain the scientific “causation” factors that must be evaluated to establish defensible WQBELs for DO, nutrients and algal growth.

EPA Toolkit of Resources, available at https://www.

epa.gov/nutrient-policy-data/toolkit-resources-assiststates-adopting-and-implementing-numeric-nutrient.

If such analyses were not required by the Act, such documents would not exist.

All water quality criteria used to set WQBELs are

based on a “cause and effect” relationship that is

demonstrated through scientific studies. Supra, at

13-14. EPA will only approve a state’s water quality

criterion if it is based on a “scientifically defensible”

analysis. 40 C.F.R. § 131.11(b). This, of course, requires

a demonstration that the pollutant is actually causing

the adverse effect of concern and the identification of

the “threshold” at which such impairment will no

longer exist (Supra, at 9-10). When implementing narrative criteria – as relevant here – an additional level

of scientific demonstration (causation) must exist because the pollutant causing the impact and the threshold of impairment is not identified by such general

criteria (this is commonly known as the “numeric

translator” for the narrative standard). Supra, at 1618. The justification and supporting analyses needed

for a scientifically defensible numeric translator is no

different than a normal numeric criterion. It is just

“case specific” in this instance. Supra, at 12, NRDC v.

Metro, Ohio Valley.

27

EPA has issued dozens of guidance documents

that describe the type of data and analyses necessary

to (1) derive scientifically defensible numeric nutrient

standards from narrative criteria, (2) demonstrate a

scientifically defensible relationship between nutrients, algal growth and DO, and (3) assess the numerous factors influencing a DO regime in an estuary

setting when enacting appropriate nutrient limitations. Most of these documents were published by EPA

a decade or more ago. EPA (and the First Circuit)

simply ignored these documents, claimed TN was the

reason for the DO impairment and relied upon an assumed DO/TN/algal growth relationship that the data

for the Taunton Estuary system verified did not exist.

(See App., 53, 54, Figure 2 and 3 – charts of system data

confirming no discernable relationship between DO

and TN or algal growth and TN).

EPA’s permitting rule, 40 C.F.R. §§ 122.44(d)(vi)(A),

(vii)(A) explains that in selecting the numeric narrative (criteria) translator EPA must “demonstrate [it]

will attain . . . applicable narrative water quality

criteria and will fully protect the designated uses” and

“ensure that . . . the level of water quality to be

achieved . . . complies with all applicable water quality

standards.” Clearly, a non-generalized causation analysis is required to impose a narrative criteria-based

WQBEL. The First Circuit also ignored that the applicable WQS standard has a clear causation requirement that “surface waters shall be free from nutrients

in concentrations that would cause or contribute to impairment. . . .” 314 CMR 4.05(a) (emphasis supplied).

28

This EPA-approved WQS does not authorize EPA to

assume that nutrients are the cause of an impairment.

The NPDES regulation that controls EPA issuance of WQBELs on its face also states EPA must

demonstrate that a discharge “causes or contributes”

[to the cause] of a water quality standard exceedance.

The First Circuit, at EPA’s direction, however, focused

on the precatory words “reasonable potential” to conclude that a “causation” requirement does not exist –

only the demonstration of a “mere possibility” that the

pollutant is the reason that a condition exists. App., at

23. This finding, however, did not analyze the overall

wording of the regulation, EPA’s regulatory preamble

and response to comments that used the words “cause”

36 times, or the agency’s guidance which explained the

term reasonable potential was a reference to statistical

procedures used by EPA to demonstrate that a discharge may cause a violation to exist under certain

rare flow conditions intended to be regulated. (Technical Support Document For Water Quality-based Toxics Control, EPA-505-2-90-001, March 1991 at 52, 59).

Courts, however, must not “construe statutory phrases

in isolation” to create ambiguity; they must read the

entire phrase “as a whole.” Utility Solid Waste Activities Group v. EPA, D.C. Cir., No. 15-1219, August 21,

2018 at 45 (quoting United States v. Morton, 467 U.S.

822, 828 (1984)).

Cases addressing narrative criteria implementation (mostly at a district court level) have uniformly

found that EPA must address “confounding factors” to

establish a defensible numeric translator. Supra, at 15

29

n.12. Confounding factors are other physical, chemical

or biological factors that could also be causing the

same adverse condition to exist in the area of concern.

For nutrients, EPA has published detailed guidance on

how to account for confounding factors and create a defensible relationship between nutrients and alleged

impairment indicators (supra, at 18, Stressor-Response

Guidance; Nutrients in Estuaries). In this case, EPA

declined to utilize such methods in analyzing system

data or accounting for the numerous natural and maninduced non-nutrient factors that could be the cause of

the minor low DO condition present in the Upper

Taunton Estuary. Regardless, it is apparent that under

a proper Chevron or Auer evaluation, this “no causation necessary” finding would never have survived judicial review. However, because unassailable deference

was given to all EPA statutory and regulatory interpretations in reliance on these cases, the Court conducted no such statutory or regulatory analyses.

Consequently, it is clear that the case directly conflicts with these Supreme Court decisions, in addition

to being substantively in error. Needless to say, this decision is also in conflict with other Circuit Courts of

Appeals regarding the level of deference to be accorded

to EPA decisionmaking. Iowa League (8th Cir.), Genuine Parts (D.C. Cir.).

30

2. Accepting EPA’s “Some degree of certainty greater than a mere possibility”

burden of proof and refusal to assess scientific validity of EPA’s approach fundamentally alters the CWA and APA review

A key factor raised on appeal to the First Circuit

was the level of proof required for EPA to justify its

selection of a stringent nitrogen reduction effluent limitation when using a narrative criteria. Taunton presented caselaw addressing EPA’s need to present a

“full defense” of its technical claims when challenged

with data and analyses indicating that the agency’s

conclusions are erroneous (Taunton Brief, Doc.

#117160850, at 27-28; supra, at 16), and that EPA

must demonstrate that the facts fit the assumptions

underlying EPA’s assessment (State Farm, at 43 (“Normally, an agency [action] rule would be arbitrary and

capricious if the agency has [inter alia] . . . offered an

explanation for its decision that runs counter to the evidence before the agency.”); Bowman Transp., Inc. v.

Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974)

(an agency is required to “examine the relevant data

and articulate a satisfactory explanation for its action

including a rational connection between the facts

found and the choice made.”) (internal quotation

marks omitted)). In such matters EPA must present

“substantial evidence” to justify its position. Genuine

Parts, 890 F.3d at 311-12. These positions were also

grounded in the regulation (40 C.F.R. § 122.44(d)). Supra, at 12-16. In particular, EPA, by rule, was required

to present sufficient analyses confirming that its

31

selection of the 0.45 mg/l TN numeric translator was

“scientifically defensible” and “ensured” attainment of

the narrative criteria. Supra, at 13-14.

The Court, with no independent analysis, whatsoever, of the applicable regulation and records supporting its adoption/implementation, stated that to be

defensible under 40 C.F.R. § 122.44(d) and uphold the

permit action, EPA must merely show its position has

“some degree of certainty greater than a mere possibility.” App., at 23. The Court simply adopted the finding

made by EPA’s EAB on this issue as if it was irrefutable, unassailable and legally correct. This action not

only failed to apply Auer to determine the proper application of the NPDES rule at issue – 40 C.F.R.

§ 122.44(d) – it created a minimal burden of proof for

EPA’s imposition of highly restrictive NPDES regulatory requirements that is nowhere contained in any

statute, jurisprudence or regulation. In particular, a

“mere possibility” burden of proof cannot be squared

with the CWA statutory requirement to demonstrate

that a more restrictive WQBEL is “necessary,” prior to

its imposition. Supra, at 14-15.

The “substantial evidence test” is applicable in

these cases as the vehicle for testing arbitrary and capricious behavior under the APA. Genuine Parts, 890

F.3d at 311, 312 (citing to Nat’l Gypsum Co. v. EPA, 968

F.2d 40, 41, 44 (D.C. Cir. 1992)). That test requires a

thorough vetting of EPA’s technical conclusions when,

as here, the only available data for this system indicated that TN, algal growth and DO had little relationship to each other in the Upper Taunton system (see

32

App. 53, 54, Figure 2, 3, regression analyses of data

from area of Upper Taunton Estuary relevant to EPA’s

decision). For its part, the Court simply ignored these

analyses because EPA claimed a reliable relationship

could not be developed from the available data. App.,

at 31. Taunton argued that this admission by EPA confirmed that the chosen TN numeric translator (0.45

mg/l) and related effluent limitation were sheer guesswork and “ensured” nothing. Leather Indus. of Am., 40

F.3d at 408. That argument was also summarily dismissed by the Court (App., at 31-32), in derogation of

State Farm.

Taunton raised several detailed factual/technical

objections to EPA’s actions stating that the data for the

system and accepted scientific practices confirm EPA’s

action was not defensible. Supra, at 19-20. Regarding

these “technical” disputes, the Court completely abandoned any responsibility to independently evaluate the

reliability of EPA’s various technical claims stating:

“our review does not deputize us to second-guess the

EPA.” App., at 38. Thus, the Court failed to apply State

Farm which holds that a decision is arbitrary and capricious if it “runs counter to the evidence before the

agency” and splits from other circuits where detailed

evaluation of technical claims is undertaken (Genuine

Parts). This total deference approach eviscerated APA

review and rendered the appeals process a paperwork

exercise for the City of Taunton.

The First Circuit’s refusal to provide any meaningful review to EPA technical findings is not grounded

in the APA and created a substantive due process

33

violation. Science is often part of the “factual” component of a decision. Balt. Gas & Elec. Co. v. NRDC, 462

U.S. 87 (1983). At times, there is an agency’s expert

opinion – which courts may grant deference to when

weighing disputed positions or if operating at “the

frontiers” of science. Id. at 103. There is, however, no

complete abandonment of review just because the issue is classified as “scientific.” State Farm has required

an assessment of whether the scientific “facts” and

“data” fit the agency’s claims for decades. Given the serious deviation from Supreme Court and other Circuit

Court precedent on the evaluation of factual/scientific

issues, the Court should grant Certiorari to review and

overturn this seriously flawed decision.

B. This Case Has Immense National Importance

The proper interpretation of the regulation at issue – 40 C.F.R. § 122.44(d) – controls water qualitybased permitting nationwide. Water quality-based

permits may be established for >130 numeric criteria

and even more broadly for otherwise “unregulated”

pollutants pursuant to narrative criteria. See Ohio Valley. The First Circuit is one of only two Circuit Courts

of Appeals that can directly review EPA’s permit decisions implementing this key rule, because under all

other federal jurisdictions, states have “delegated” programs.14 Review of EPA “directives” or “objections” to

state-issued NPDES permits is not available in federal

14

The only non-delegated states are now New Mexico (Tenth

Circuit) and Massachusetts and New Hampshire (First Circuit).

34

Court. S. Cal. Alliance of Publicly Owned Treatment

Works v. EPA, 853 F.3d 1076, 1086 (9th Cir. 2017) (“the

federal courts may not review EPA’s objections to

state-drafted permits before those permits have been

issued by the states.” (citing Am. Paper Inst. v. EPA,

890 F.2d 869, 873, 875 (7th Cir. 1989))). Therefore, First

Circuit decisions on the proper interpretation of 40

C.F.R. § 122.44(d) essentially become the “law of the

land” absent review by the Supreme Court.

This case also demonstrates how administrative

agency review becomes a “rubber stamp” when courts,

like the First Circuit, compound areas of deference

that allegedly must apply in reviewing different aspects of EPA permitting/regulatory actions. The list of

“areas and degrees of deference” cited in the Taunton

decision is impressively long – leaving no segment of

the appeal untouched. Supra, at 20-21. However, the

APA, on its face, nowhere specifies that agency review

is subject to an extensive list of compounded deference

cited in the First Circuit decision. Id. No Supreme

Court decision has ever specified that deference must

be applied to “all aspects” of agency decisionmaking.

Nor has the Court ever stated that scientific aspects of

a decision are simply too “complex” to evaluate, as occurred in the instant case. Finally, Auer deference is

now being used to subvert independent judicial review.

Under the guise of “rule interpretation” the First Circuit has granted EPA “carte blanche” to render whatever interpretation it wants with no analysis showing

that the regulation was intended to operate in this

fashion or that regulatory costs being imposed bear a

35

reasonable resemblance to environmental need, a factor that must be consulted in establishing NPDES

rules. Supra, at 14, Michigan v. EPA.

In this case, the record is devoid of analyses indicating how much improvement to the DO regime

would actually occur from a $30 million expenditure

for TN reduction at Taunton or that without such reduction, attaining the applicable standard would not

be possible (i.e., the discharge is an important “significant contributor” to the problem that needs to be addressed). This is a typical assessment that occurs

during the WQBEL/TMDL process, where EPA or the

state decides which sources need to be regulated and

which do not. The First Circuit’s approval of extreme

and costly regulation based on a “mere possibility” has

no place in any rational regulatory program. Congress

most certainly did not approve that approach under

the Act in directing EPA to confirm water qualitybased requirements are “necessary,” or in establishing

“necessary” and “appropriate” NPDES rules (33 U.S.C.

§ 1342(a)(1)-(2)) and that water quality standards

themselves are based on a scientific need demonstration (impairment threshold).

Clearly, Auer and Chevron need to be overturned

and the Supreme Court needs to make clear that reviewing courts, not EPA, must determine whether an

agency’s interpretation is consistent with (1) the

adopted rule and (2) the statutory framework. Deferring to EPA’s ad hoc claims is not due process, it is not

an APA review – it is an abandonment of Article III

responsibilities that require the reconsideration of this

36

Court. Separation of Powers demands more to be done

by the judiciary in ensuring we are a nation of laws,

not men.

------------------------------------------------------------------

CONCLUSION

It is respectfully requested that the petition for

certiorari be granted.

Respectfully submitted,

JOHN C. HALL

HALL & ASSOCIATES

1620 I Street, N.W., Suite 701

Washington, D.C. 20006

(202) 463-1166

Counsel for Petitioner