ELR Citation: ELR 21090
No(s). 3-97-CV-1564-H (N.D. Tex. Dec 16, 1997)

The court holds that it lacks subject matter jurisdiction over a citizen group's Federal Water Pollution Control Act (FWPCA) suit against the U.S. Environmental Protection Agency (EPA) and the Natural Resource Conservation Service (NRCS) and further holds that EPA is exempt from the group's National Environmental Policy Act (NEPA) claim. The group filed suit for declaratory and injunctive relief against EPA and the NRCS alleging FWPCA and NEPA violations with regard to a Texas plan that addresses concentrated animal feeding operations (CAFOs) as nonpoint sources. The court first holds that federal jurisdiction does not arise under FWPCA §505(a)(1) for a citizen suit against EPA as administrator of the Act. FWPCA §505(a)(2), a parallel provision, would be essentially nullified by application of §505(a)(1) to EPA. The court also holds that jurisdiction does not arise under FWPCA §505(a)(2). No mandatory EPA duty arises from the FWPCA to perform the specific actions for which the group requests declaratory and injunctive relief. The group does not and cannot assert that EPA violated its duty to establish and apply effluent limitations to all point sources under FWPCA §301. EPA long ago established effluent guidelines for CAFOs as point sources and applied those guidelines to CAFOs in Texas through a general CAFO permit. Nowhere does the subsection suggest that EPA has a mandatory duty to oppose a state's environmental plan that does not comply with the standard and permit that EPA already mandated under the FWPCA. Nor can the group assert that EPA violated its duty to review state water quality standards under §303. The group neither pleads nor argues that the plan represents a change in Texas water quality law. Even if the pleadings might be so liberally construed, the question is not yet ripe for judicial review. Moreover, no significant hardship is imposed on the group by deferral of adjudication until EPA has had the opportunity to accomplish its duties and the group has had the opportunity to clarify and finalize its case if EPA fails. The court then holds that the lawsuit against EPA is in effect an action for enforcement. According to Fifth Circuit precedent, such enforcement decisions are strictly discretionary with EPA. Thus, the group cannot rely on the FWPCA to provide jurisdiction for its claims. In addition, the court holds that the Administrative Procedure Act does not provide a jurisdictional basis for the group's claims against EPA. The group cannot point to any final agency action of which it complains. In addition, the court would have no possible means of evaluating EPA's inaction, because the group has identified no ripened duty of EPA to act. Furthermore, the group failed to pursue its available administrative remedies. The court also holds that the Declaratory Judgment Act cannot serve as a basis for jurisdiction over the group's claims against EPA. The Act itself does not grant federal jurisdiction. The court then holds that to the extent that the group alleges an FWPCA claim against the NRCS the same jurisdictional analysis applies.

The court next holds that the group failed to state a claim against EPA under NEPA because FWPCA §511(c) is sufficiently broad to exempt EPA from liability under the NEPA regulations at issue in this case. Under the bare language of FWPCA §511(c), EPA action is not to be regarded as major federal action significantly affecting the quality of the human environment. Accordingly, courts have held that EPA is exempt from preparing an environmental impact statement. Given this, the court reasons that EPA is similarly exempt from NEPA obligations predicated on regulations implementing such impact statements. Last, the court denies the NRCS' motion for a more definite statement of the basis of the NEPA claims. Such a motion may only be granted if the information sought cannot be obtained by discovery. Although discovery in this case shall be limited strictly to the administrative records at issue, it is not entirely prohibited.

Counsel for Plaintiffs
Boyd Waggoner, Clint D. Van Treese
Waggoner & Malouf
2651 N. Harwood St., Ste. 210, Dallas TX 75201
(214) 969-7373

Counsel for Defendants
Paula M. Billingsley, Ass't U.S. Attorney
U.S. Attorney's Office
1100 Commerce St., 3d Fl., Dallas TX 75242
(214) 767-0951