The Clean Water Act (CWA) requires states to set caps, known as "TMDLs," for the amount of certain pollutants that may be discharged into polluted waters. Under the (CWA), TMDLs must be set at the level "necessary" to meet relevant water quality standards. For years, the U.S. Environmental Protection Agency has maintained that TMDLs need not establish daily discharge limits, even though TMDL stands for "total maximum daily load" (emphasis added). For some pollutants, the EPA approved TMDLs that set annual or seasonal, rather than daily, limits. When the EPA approved such limits for the discharge of pollutants into the Anacostia River, one of the most polluted rivers in the nation, Friends of the Earth sued.The EPA claimed that setting annual or seasonal discharge limits makes more sense in some contexts, such as storm water. Perhaps this is so, but that does not make it legal.
In a recent opinion, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit resoundingly rejected the EPA's suggestion that "the word 'daily,' as used in the Clean Water Act, is sufficiently pliant to mean a measure of time other than daily." As Judge David Tatel explained in his opinion for the panel in Friends of the Earth v. EPA:
The law says "daily." We see nothing ambiguous about this command. "Daily" connotes "every day." See Webster's Third New International Dictionary 570 (1993) (defining "daily" to mean "occurring or being made, done, or acted upon every day"). Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually. And no one thinks of "[g]ive us this day our daily bread" as a prayer for sustenance on a seasonal or annual basis. Matthew 6:11 (King James).As the Washington Post editorialized, this "strong, derisivie language" was a "message to the agency to take congressional enactments seriously, as written, not as the agency wishes Congress had written them."
Were it not bad enough that the EPA sought to ignore the plain language of the statute, the agency failed to take advantage of a potential out the statute provides. The CWA only mandates the setting of TMDLs for those pollutants deemed "suitable" by the EPA. In 1978, the EPA determined that "all pollutants" were "suitable" for daily limits, but there is no reason that the EPA could not revisit this conclusion. Thus, Judge Tatel wrote, the court was "at a loss as to why [the EPA] neglected this straightforward regulatory fix in favor of the tortured argument that 'daily' means something other than daily."
This was not the first time the EPA has tried this argument in court, however. In 2001, the EPA convinced a panel of the U.S. Court of Appeals for the Second Circuit, in NRDC v. Muszynski, that "the CWA does not require that all TMDLs be expressed strictly in terms of daily loads" because this could produce "absurd" results for some pollutants. Thus, the D.C. Circuit's opinion creates a circuit split on the question. (I have not yet heard whether the EPA intends to file for certiorari.)
This was also not the first time that the EPA had sought to ignore "a statute's plain language simply because the agency thinks it leads to undesirable consequences" (and I doubt it will be the last). In the 2002 case of Sierra Club v. EPA, for example, the D.C. Circuit took the EPA to task for the same offense, this time in the context of Clean Air Act implementation. In both cases, the EPA sought to implement a "reasonable" policy choice at odds with statutory text. In both cases, the beneficiary of the EPA's flexible interpretive approach was the District of Columbia. Is it overly cynical of me to think this is not wholly coincidental? One would expect regulators to be more sensitive to the practical consequences of regulatory decisions about which they will bear the costs and reap the rewards. Therefore, would it be surprising were the EPA more aggressive in its efforts to stretch statutory text to avoid "unreasonable" results where such efforts will have their greatest effect in the agency's own backyard? I am curious as to what readers think about this subject, and whether this question is worth further empirical examination.