Rehearing and Rehearing En Banc Denied September 21, 1977.
The 1972 amendments to the Federal Water Pollution Control Act joined the Environmental Protection Agency and the fifty states in a delicate partnership charged with controlling and eventually eliminating water pollution throughout the United States. The petition before us raises several questions concerning the role of the federal appellate and district courts in scrutinizing EPA's performance within this partnership.
The Mississippi Air and Water Pollution Control Commission is a member of this pollution battling alliance. In 1975 the Commission granted to E. I. DuPont de Nemours & Co. a permit to operate a titanium dioxide plant at Bay St. Louis, Mississippi. EPA acquiesced in this action by its partner; petitioner here challenges that acquiescence. Petitioner specifically claims, first, that the Commission so mishandled DuPont's permit application that the EPA should have revoked the Commission's authority to grant such permits. Second, petitioner would have this court review EPA's failure to block the DuPont permit.
EPA strenuously urges that this court is without jurisdiction to consider either of petitioner's contentions. We conclude that this court has both the authority and obligation to review EPA decisions to withdraw or not to withdraw a state's delegated permit authority. Certain preconditions to that review are here missing, however, and preclude our determination of the merits of petitioner's first claim. Second, we conclude that this court lacks jurisdiction to review EPA's failure to veto the permit. To the extent EPA's action in this regard is reviewable, original jurisdiction must lie in the district courts. Accordingly, we dismiss the original petition filed in this court.
I. Legislative and Factual Background
The Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251-1376 (hereinafter "Amendments") substantially overhauled the nation's system of water quality control, declaring "the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985". § 101(a)(1), 33 U.S.C. § 1251(a)(1). Toward that end the Amendments introduced a system of "effluent limitations" on "point sources" of pollutants.
To enforce the effluent limitations, the Amendments created the National Pollution Discharge Elimination System (NPDES), a scheme for issuing permits to individual dischargers of pollutants. See § 402, 33 U.S.C. § 1342. Without an NPDES permit, one may not lawfully discharge a pollutant. See § 301(a), 33 U.S.C. § 1311(a). Discharge in compliance with the terms of an
Congress vested this all-important permit issuing authority in EPA as an original matter. See § 402(a)(1), 33 U.S.C. § 1342(a)(1). In keeping with congressional desire "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution", Amendments § 101(b), 33 U.S.C. 1251(b), the 1972 legislation also offered states the opportunity to obtain permit issuing authority. Under § 402(b), 33 U.S.C. § 1342(b), a state may submit to EPA a proposed permit program governing discharges into navigable waters within its borders. The state must demonstrate that it will apply the effluent limitations and the Amendments' other requirements in the permits it grants and that it will monitor and enforce the terms of those permits.
Upon approval of a state program, EPA must suspend its own issuance of permits covering those navigable waters subject to the program. § 402(c)(1), 33 U.S.C. § 1342(c)(1). Although its role as issuer of NPDES permits thereupon ceases, the federal agency retains review authority and responsibility over an approved state program. The two aspects of this supervisory role form the subjects of the case at bar.
First, EPA may withdraw its approval of a state program upon determining, after notice and an opportunity to respond, that the program is not being administered in compliance with the requirements of § 402, 33 U.S.C. § 1342. See § 402(c)(3), 33 U.S.C. § 1342(c)(3). Second, EPA may veto individual permits issued under approved state programs. Section 402(d)(1), 33 U.S.C. § 1342(d)(1), requires a state to send EPA a copy of each permit application it receives and to notify EPA of every action related to the application, including any proposed permit. Section 402(d)(2)(B), 33 U.S.C. § 1342(d)(2)(B), provides that no permit shall issue
The Administrator may waive his right to object to any individual permit application. § 402(d)(3), 33 U.S.C. § 1342(d)(3). Additionally, at the time he approves a state program the administrator may waive as to any category of point sources the requirement that the state transmit proposed permit applications and related action as well as his veto power over permits within the category. § 402(e), 33 U.S.C. § 1342(e). The Administrator may also promulgate regulations, applicable to every approved state program, designating categories of point sources within which the transmittal requirements and veto power will not apply. § 402(f), 33 U.S.C. § 1342(f).
In both the committee reports and floor debates Congress devoted significant attention to the EPA veto power over individual permits granted under state NPDES programs. In that version of the Amendments first passed by the Senate, § 402(d) provided that no permit under a state program could issue "until the Administrator is satisfied that the conditions to be imposed by the State meet the requirements of this Act." S. 2770, 92nd Cong., 2d Sess. § 402(d) (1972). Like the legislation now in effect, the Senate bill authorized EPA waiver of this review requirement on an individual permit or categorical basis. The Public
S.Rep. No. 92-414, 92d Cong., 1st Sess. (1971), reprinted in  U.S.Code Cong. & Ad.News, pp. 3668, 3737.
The House rejected the individual permit veto in the version of the Amendments it passed. It authorized EPA to interpose an objection to a state permit only upon notification by another state claiming adverse impact from the proposed permit. H.R. 11896, 92d Cong., 2d Sess. §§ 402(b)(5), 402(d)(2) (1972). The House Public Works Committee explained its failure to include a permit-by-permit veto power in the following terms:
H.Rep. No. 92-911, 92d Cong., 2d Sess. 127 (1972). During the floor debates in the House, the sponsors of the legislation echoed these arguments for disapproval of the veto power. See 118 Cong.Rec. 10219, 10663 (1972) (remarks of Rep. Terry); 118 Cong.Rec. 10662-63 (1972) (remarks of Rep. Roe). Proponents of the veto power contended that it was necessary to deter states from relaxing enforcement to attract industry and that EPA's power to revoke a state's NPDES authority was too unwieldy and drastic a tool to be a useful alternative. See 118 Cong.Rec. 10639 (1972) (remarks of Rep. Dingell); 118 Cong.Rec. 10662 (1972) (remarks of Rep. Reuss). The House nevertheless rejected an amendment vesting in EPA a permit-by-permit veto authority similar to that passed by the Senate. See 118 Cong.Rec. 10664 (1972).
The Senate view with slight modification prevailed at conference. The conference committee draft, adopted by both houses, reinstated EPA's power to stop issuance of an individual permit by objecting to it as "outside the guidelines and requirements of [the Federal Water Pollution Control Act]." Amendments § 402(d)(2), 33 U.S.C. § 1342(d)(2). The conference committee also brought forward the features of the Senate bill allowing EPA to waive its permit veto power on an individual or categorical basis.
Senator Muskie, the principal author of the Amendments, their sponsor and floor manager in the Senate, and the Senate leader at conference negotiations, prepared for the Senate a statement of his understanding of the conference agreement.
118 Cong.Rec. 33698 (1972).
In returning to the House with a bill including the EPA veto that body had previously rejected, the conferees stressed their understanding of the supervisory role EPA would occupy once it approved a state NPDES program. Representative Jones of Alabama explained as follows:
118 Cong.Rec. 33750 (1972). Congressman Wright echoed the theme of restraint in the EPA's exercise of its supervisory role:
118 Cong.Rec. 33761 (1972). Both houses passed the legislation as revised by conference committee. Both subsequently voted to override a presidential veto.
This legislative history forms the backdrop to the dispute before this court. Mississippi submitted a proposed NPDES program for EPA approval in August 1973. The federal agency gave its approval on May 1, 1974, transferring authority to issue NPDES permits for dischargers in Mississippi to the Mississippi Air and Water Pollution Control Commission (hereinafter "Commission").
On August 28, 1974, the Commission sent EPA a copy of DuPont's application for a permit to discharge from a proposed titanium dioxide manufacturing plant to be located on St. Louis Bay. The company proposed one discharge point into the Bay and two into a deep well injection system.
EPA did not waive its authority to review the DuPont proposal. Rather the agency undertook consideration of the matter in consultation with the Commission's staff. EPA suggested certain changes in the Commission's proposed permit, including increased monitoring requirements of the deep well discharges and a requirement that DuPont conduct a study to determine the present levels of various elements in the Bay.
On January 17, 1975, the Commission sent EPA a final draft permit, incorporating the requested changes. EPA informed the Commission it would not veto the permit as drafted, but requested further changes. On February 3, 1975, the Commission issued the DuPont permit, which again incorporated all EPA's requests.
Save the Bay, Inc., an incorporated association concerned with environmental protection, filed its petition in this court on March 11, 1975. Petitioner presses two claims. First, it asserts that the Commission so violated federal guidelines in handling the DuPont permit that EPA should have revoked the state's NPDES authority pursuant to § 402(c)(3), 33 U.S.C. § 1342(c)(3). Second, petitioner claims EPA should have vetoed the permit as "outside the guidelines and other requirements" of the Amendments.
II. Failure to Withdraw Mississippi's NPDES Authority
Save the Bay alleges that the Commission's treatment of the DuPont permit demonstrated that the state authority is operating contrary to EPA guidelines in several areas, including providing for public participation and policing conflicts of interest. Petitioner contends that EPA's failure to respond by withdrawing the Commission's authority is directly reviewable here as "Administrator's action . . . (D) in making any determination as to a State permit program submitted under section 1342(b) of this title . . ." § 509(b)(1)(D), 33 U.S.C. § 1369(b)(1)(D). EPA responds that the agency has made no "determination" regarding revocation of the Commission's authority for this court to review.
Though EPA couches its argument in terms of "jurisdiction", the agency does not dispute that, had it undertaken review of the state program and held the public hearing required before revocation under § 402(c)(3), 33 U.S.C. § 1342(c)(3), this court would have original jurisdiction to review EPA's decision to revoke or not to revoke NPDES authority. Such a decision would be a "determination as to a State permit program" within this court's purview under § 509(b)(1)(D), 33 U.S.C. § 1369(b)(1)(D).
EPA's contention is rather that the administrative process regarding revocation has not moved sufficiently forward to generate a "determination" for this court to review. The agency at oral argument expressed the position that full administrative development should precede litigation over claims that a state program's permit authority should be withdrawn. Following the approach taken to a very similar problem in Oljato Chapter of Navajo Tribe v. Train, 169 U.S.App.D.C. 195, 515 F.2d 654 (1975), we agree and dismiss this portion of the petition without prejudice to its refiling after the administrative process has had an opportunity to run.
In Oljato, petitioners claimed that new information required EPA revision of Clean Air Act standards applicable to certain coal-fired electric generating stations. The D.C. Circuit found that the Clean Air Act, § 307(b)(1), 42 U.S.C. § 1857h-5(b)(1), vested it with original jurisdiction to review a decision whether to revise standards on the basis of new information. The court rejected, however, the suggestion that it consider directly the information proffered by petitioners and that it determine whether the data sufficed to require revision of the challenged
Oljato, supra, 515 F.2d at 666.
The court then fashioned a simple set of requirements to implement the desired decisionmaking procedure:
Id. The court concluded that an exchange of letters seeking and denying revision was insufficient in the circumstances before it to form a basis for review. The parties had substantially developed their factual arguments during litigation, outside the administrative record before the reviewing court. Moreover, the fact that the agency had not had the opportunity to respond to petitioner's claims outside the context of litigation raised the danger that its responses would be unreliable after the fact rationalizations. These considerations prompted the court to dismiss the petition without prejudice. See id. at 667.
We find that the Oljato approach translates most sensibly to the problem before us and requires a like result. To ensure orderly development of the issues and the record, as well as to promote the full and objective application of the agency's expertise, EPA should be given the opportunity independent of litigation to formulate a response to petitioner's allegations regarding the Mississippi program. The circumstances of this case did not afford the agency that opportunity. Save the Bay did send EPA a letter on February 21, 1975, stating its belief that the agency had violated its duty by failing to withdraw NPDES authority from the Commission. While the letter complained of the Commission's handling of the DuPont permit and referenced materials filed by petitioner in Mississippi state court proceedings concerning that permit, the letter did not ask for a hearing or for other agency action relating to revocation of the Commission's NPDES authority. Rather, the letter simply put EPA on notice of petitioner's intent to file suit.
As in Oljato, the parties' positions on revocation of the Commission's authority, even regarding matters of fact, have developed in the context of litigation and outside the very limited administrative record before us on review. This petition came only 18 days after EPA received Save the Bay's letter characterizing the failure to withdraw the Commission's NPDES authority as an accomplished violation for which the organization would file suit; here was no proffer of information and request for investigation and a hearing. EPA quickly found itself in the position of justifying past behavior, not considering the most desirable present course of action.
Accordingly, we cannot proceed to the merits of this claim. Under the procedure fashioned in Oljato, a request that EPA revoke a state's NPDES authority and an EPA response are prerequisites to our
515 F.2d at 666-67. n.19. Moreover, we must emphasize the limited nature of our ultimate review over a decision not to revoke a state's NPDES authority, which would encompass the familiar inquiry whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law". 5 U.S.C. § 706(2)(A); see Citizens to Preserve Overton Park, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Finally, we must express some skepticism whether a state authority's unsatisfactory handling of a single permit would ever warrant EPA revocation of NPDES authority, much less judicial reversal of a decision not to revoke. Certainly only the most egregious flouting of federal requirements in the context of an individual permit could justify that sanction. A complaint relating to the treatment of a single permit application therefore seems more appropriately addressed to EPA's veto power over individual permits, to which we now turn. To reiterate, petitioner's claim that EPA should have revoked the Commission's NPDES authority is dismissed without prejudice to refiling after compliance with the procedural requirements set forth above.
III. Failure to Veto a Permit: Court of Appeals Review
Save the Bay's primary concern before this Court is the DuPont permit. The organization contends that alleged defects in the permit required EPA to block its issuance. Petitioner asks this court to review the agency's failure to do so.
Our immediate concern is not whether there exists any federal judicial review of the Administrator's decisions whether to veto permits issued under state NPDES programs. Rather it is whether those decisions fall within the limited categories of administrative action over which § 509, 33 U.S.C. § 1369, grants this court
Section 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F), provides this court with jurisdiction to review the Administrator's action "in issuing or denying any permit under section 1342". In states that have not obtained approval for their own NPDES programs, this provision unquestionably vests in us review over EPA decisions to issue or deny permits to applicants. In states with approved NPDES programs, however, the role of this provision is less clear, for although EPA's failure to veto a proposed permit leads indirectly to issuance by the state, such EPA action does not necessarily constitute "issuing" for purposes of § 509, 33 U.S.C. § 1369.
The quandary presented by the case at bar is thus the following: when an approved state NPDES authority proposes to grant a permit, does EPA's omission to veto constitute "action in issuing" a permit?
The language of the 1972 Amendments is consistently to the contrary. Permits granted under state NPDES programs are state-issued permits, not EPA-issued. Upon the approval of a state NPDES program, § 402(c)(1), 33 U.S.C. § 1342(c)(1), requires the Administrator to "suspend the issuance of permits under subsection (a)", the subsection authorizing EPA itself to issue permits. Before approving a state program, the Administrator must determine that under the program adequate authority exists "to issue" permits in accordance with the requirements of the Amendments. § 402(b), 33 U.S.C. § 1342(b). Among the materials a state program must transmit to EPA in connection with individual permit applications is "each permit proposed to be issued by such State." § 402(d)(1), 33 U.S.C. § 1342(d)(1) (emphasis added).
The legislative history also suggests that the Administrator's exercise of supervisory review over proposed permits forwarded by state programs is distinct from "issuance" of the permits, which is left to the states. The Senate Public Works Committee described EPA's role as including "the authority to review any permit before it is issued by a State . . . . S.Rep., supra,  U.S.Code Cong. & Ad.News at 3737 (emphasis added). Similarly, Congressman Wright explained to the House in the post-conference debates that after EPA approval of a state program, "the States, under State law, could issue State discharge permits." 118 Cong.Rec. 33761 (1972).
Accordingly, we conclude that the Administrator's consideration of a permit proposed to be issued by a State NPDES authority and his decision not to object to the permit do not constitute "action in issuing" a permit within the jurisdictional grant of § 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F). Where the Administrator completely omitted to consider the merits of a state permit proposal and simply allowed the period for objection to run, the Second Circuit has similarly found no action upon which to base Court of Appeals review under § 509. See Mianus River Preservation Committee v. EPA, 541 F.2d 899 (2d Cir. 1976).
The inadequacy of the administrative record regarding EPA's failure to veto the DuPont permit buttresses our conclusion. Any assumption that EPA's decision is subject to federal judicial review, however restricted in scope, would raise the question whether review would proceed first in the Court of Appeals under § 509, 33 U.S.C. § 1369, or alternatively in the district courts, either as a suit to compel performance of a nondiscretionary duty under
The administrative record here is wholly inadequate to reveal what factors were considered by EPA in determining not to object, a factual matter of dispute between the parties.
IV. Failure to Veto: District Court Reviewability
We have concluded that Save the Bay's petition must be dismissed as respects both of its claims. Technically, our obligation is at an end. Our conclusions, however, raise the question whether EPA's decision not to veto a permit is reviewable in the district court or not reviewable at all. We could lay aside this question for another day. To do so, however, would require this petitioner or another once again to spin the wheel of jurisdictional fortune and to spend two years in litigation only to return to this court a question of law. Considerations of judicial economy and fairness require us to address the question of district court reviewability as presented by the circumstances surrounding the DuPont permit.
The Supreme Court has stated in strong terms that the exemption from APA review of action "committed to agency discretion" "is a very narrow exception." Citizens to Preserve Overton Park, Inc., supra, 401 U.S. at 410, 91 S.Ct. at 821. The exception applies only
Id. That a statute by its terms permits, rather than compels, agency action does not alone commit that action to the agency's unreviewable discretion. See Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970). Moreover, in those rare instances when a decision in its totality lies within an agency's unreviewable discretion, judicial review will still frequently be available for limited, specific issues subsumed in the decisionmaking process. See Ness Investment Corp. v. United States Department of Agriculture, 512 F.2d 706 (9th Cir. 1975); East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972); Medical Committee for Human Rights v. SEC, 139 U.S.App.D.C. 226, 432 F.2d 659 (1970), vacated as moot, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). Such partial review serves to protect individuals' interests adversely affected by agency action while imposing only limited, acceptable intrusion upon the administrative process and the dockets of the federal courts. See Saferstein, Nonreviewability: A Functional Analysis of "Committed to Agency Discretion," 82 Harv.L.Rev. 367 (1968). Along these lines it has been said that "[T]he question is not whether agency action is by law committed to agency discretion but to what extent agency action is so committed." 4 K. Davis, Administrative Law Treatise 33 (1958), quoted in Medical Committee for Human Rights, Inc. v. SEC, supra, 432 F.2d at 673 (emphasis in quote).
Applying these principles to the situation in which EPA undertakes consideration of the merits of a proposed permit and decides on the basis of that consideration not to veto it, we find that only the most limited partial review is available in the district court. In this situation, which is presented by the case at bar, the agency unquestionably has engaged in a decisionmaking process and reached a resolution. That the agency's decision is to forego a course of action does not automatically signify that the agency has taken no reviewable action by its decision. See United States v. Joseph G. Moretti, 478 F.2d 418 (5th Cir. 1973); Medical Committee for Human Rights, supra; Environmental Defense Fund, Inc. v. Hardin, supra, 428 F.2d at 1098. Having chosen to act, the agency had to conform its actions to the boundaries of the law. The question is whether the law here supplies any boundaries or whether it is drawn in such broad terms that there is "no law to apply."
While these guidelines and regulations could provide "law to apply" in reviewing a decision not to veto a permit, the legislative history makes very clear that Congress intended EPA to retain discretion to decline to veto a permit even after the agency found some violation of applicable guidelines. That legislative history, more explicit and unequivocal than generally found, leans in almost every expression toward a minimal federal intervention when a state plan has been approved. First, there was a significant shift in the language of the veto provision during the legislative process. The original Senate version provided that, unless the Administrator affirmatively waived his review of a specific permit, it could not issue "until the Administrator is satisfied that the conditions . . . meet the requirements of this Act." The conference compromise, in addition to retaining the waiver provisions, allows the state permit to issue unless the Administrator affirmatively objects, which the statute authorizes, but does not expressly require, upon a finding of departure from the guidelines. While the use of permissive language is of little persuasive effect itself, the shift from the original Senate version does suggest that not every permit out of compliance with the guidelines need be vetoed.
The post-conference floor debates also disclose intent to confer such discretion. The House had originally rejected any permit-by-permit veto power. The floor managers set out to mollify opponents of that power by explaining the nature of the veto prerogative inserted at conference. Representative Jones emphasized that the Administrator was not intended to veto a permit except upon a "clear showing" of noncompliance with the guidelines. 118 Cong.Rec. 33750 (1972). Congressman Wright noted that the Administrator "may stop" the issuance of an unlawful permit and further explained:
118 Cong.Rec. 33761 (1972).
The primacy of state and local enforcement of water pollution controls is a theme that resounds throughout the legislative history of the Amendments. In light of the pervasiveness of this theme, the specific references to the veto power above, and the conferral of broad discretion to waive review of individual permits, we conclude that Congress intended to allow the Administrator to consider the significance of any guideline violations in terms of the overall goal of the Amendments, the elimination of all discharge of pollutants into the nation's navigable waters by 1985. Federal
Given discretion to weigh the substantiality of any violations of the guidelines and requirements of the Amendments as well as a mandate to determine the presence of such violations, EPA's decision not to veto a particular permit takes on a breadth that in our judgment renders the bottom line of that decision unreviewable in the federal courts. Once the relevant factors are before the agency, it can weigh them within this broad mandate with an expertise to which the restraining powers of judicial review could add little. Given such a mandate, a judge's judgment on the significance in terms of water quality of the provisions of a permit is not likely to be sounder or fairer to the challenger, whether environmentalist or industrialist, than that of the EPA. See Note, D. C. Federation of Civic Associations v. Volpe: Blessing or Burden?, 27 Stan.L.Rev. 125 (1974).
Thus our situation is much like that faced by the Ninth Circuit in East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972). There Governor Reagan had vetoed a proposed community project grant from the Office of Economic Opportunity (OEO). Plaintiffs complained of OEO's failure to exercise its power to override the veto in cases of grants "consistent with the provisions and in furtherance of the purposes of the Act." 42 U.S.C. § 2834. The court found that this "extremely general standard" required OEO to take into consideration such ineffables as the "wisdom or desirability" of a particular project and in the process to apply its experience and expertise regarding the efficacy of such experimental projects. The court concluded that the decision whether to override was committed to the agency's discretion. See also Greater New York Hospital Association v. Mathews, 536 F.2d 494 (2d Cir. 1976); Ness Investment Corp. v. United States Department of Agriculture, 512 F.2d 706 (9th Cir. 1975).
While the discretion of the Administrator in considering the proposed permit appears to extend no further than the significance of any violations of requirements of the Amendments in terms of the overall goal of eliminating water pollution, we find that the scope of that discretion is such "that it would not afford a reviewing court a practicable rule for determining the legality of the . . . ultimate decision . . ." East Oakland-Fruitvale Planning Council, supra, 471 F.2d at 533. Accordingly, we hold that the Administrator's conclusion not to veto an individual permit is itself immune to judicial review.
As in East Oakland-Fruitvale Planning Council, supra, however, this observation does not mean that the Administrator is completely beyond the scrutiny of the federal courts in performing the supervisory role over state permits that Congress, after exhaustive debate on the specific subject, saw fit to establish:
Id. See also Ness Investment Corp., supra; Medical Committee for Human Rights, supra; Saferstein, supra.
While Congress in considering the Amendments articulated a definite commitment to a hands-off policy toward the states, equally clearly it did not intend the hands of the federal government completely to be tied. In light of the precedent for partial review of administrative action, we must be loathe totally to eradicate judicial review from a legislative framework in which the federal government has not wholly abdicated its role. From that perspective we find that judicial review may appropriately confine EPA's discretion along two very narrow lines. First, nothing in the statute or its history suggest any basis for allowing EPA in reviewing the merits of a permit totally to omit consideration of a
The other available avenue of review runs in precisely the opposite direction. There is no suggestion anywhere in the Amendments' history that EPA may base a decision not to veto on factors other than a specific permit's consistency with the guidelines or the insignificance of any departures. There must accordingly be room for claims that unlawful factors have tainted the agency's exercise of its discretion. For example, there is no room for consideration of the political popularity of a decision to veto a permit and, thereby, some local project. Nor could EPA let pass a permit it would otherwise veto on acknowledgement of the fact that the state agency involved had generally drawn up lawful permits. Once EPA explained or removed the alleged illegitimate factor, of course, the final decision not to veto would be within its unreviewable discretion.
These two avenues of review raise narrow issues that a district court may expeditiously resolve. They involve a bare minimum of intrusion on the agency's processes. As was said in a similar context,
Medical Committee for Human Rights, supra, 432 F.2d at 675.
With only that minimal intrusion, the partial review outlined will help assure that potentially serious violations of law in proposed permits that threaten individuals or businesses will not go unattended as EPA carries out the supervisory responsibility Congress unequivocally placed within its walls. The limited scope of the reviewable issues and the nonreviewability of EPA's final determination offer sufficient sanctuary from any imagined onslaught of frivolous petitions. The courts may easily supply this limited review. To do less would be to ignore the limited but important federal side of the partnership created by the Amendments; moreover, it would be unnecessarily to denigrate the role of private citizens of all persuasions in the administrative process and to abrogate the strong presumption in favor of judicial review of administrative action.
We have been called upon to examine a statutory scheme that has the potential for the optimum of federalism. The legislation contains problems of accommodation that will require additional interstitial interpretation and environmental exploration as the partners pirouette. The success of their federalist venture will depend not only
The petition of Save the Bay, Inc., insofar as it claims the Administrator has unlawfully failed to revoke the NPDES authority of the Mississippi Commission, is DISMISSED WITHOUT PREJUDICE. Insofar as it seeks review of the failure to veto the DuPont permit, it is
Because we conclude that we have no jurisdiction to consider petitioner's claim that EPA should have vetoed the permit, we have no occasion to consider the effect of this state judicial review of the state authority's action on federal judicial review of EPA action.
In Oljato, moreover, the court noted that EPA failure to respond to a request for revision might be appealable to the district court under the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, which authorize the court to compel "agency action unlawfully withheld or unreasonably delayed". 5 U.S.C. § 706(1). See 515 F.2d at 667 n.20. At oral argument EPA suggested that a citizen's suit under the Amendments for failure to perform a non-discretionary duty, § 505, 33 U.S.C. § 1365, might provide similar redress.
We note that by our decision we suggest no answer to the question whether a veto by EPA would be reviewable directly in this court. That problem poses the question whether veto of a permit someone else proposes to grant is any more a "denial" of the permit than a failure to veto is an "issuance."
It is clear that the Amendments leave the Administrator large discretion to waive review of individual permit applications. § 402(d)(3), 33 U.S.C. § 1342(d)(3). It remains less obvious what discretion the Administrator possesses to undertake no consideration of applications over which he does not waive review. We need not and do not attempt to resolve this question.
The importance of these factors to the majority's decision may be seen in its rejection of the claim by Justice Marshall in dissent that Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), is inconsistent with the analysis employed by the majority. See id. ___ U.S. ___ at n. 10, 97 S.Ct. 2411 (Marshall, J., dissenting). In Bachowski the court held reviewable the Secretary of Labor's decision not to challenge the validity of a union election under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482. The Secretary's decision had been similarly circumscribed by a 60 day time limit.
The majority distinguished Bachowski from the Voting Rights Act problem before it on the basis of the two factors noted above. Nothing like the severity of the § 5 remedy was involved in Bachowski. See ___ U.S. at ___, n. 20, 97 S.Ct. 2411. Moreover, suit by the Secretary of Labor provided the exclusive post-election remedy for the complainants in Bachowski, strengthening the case for administrative review of the Secretary's decision not to sue. See id.
The same reasons given by the majority in Morris to distinguish Bachowski distinguish the case at bar and confirm the propriety of the review we have found, which we note is even more limited in scope than that authorized in Bachowski. First, the intrusion on state sovereignty by EPA's veto power is miniscule in comparison to the § 5 preclearance requirement. Congress could have placed all permit authority in the EPA. Instead it brought the states into the partnership. To require some federal scrutiny of a state's action in issuing a permit under delegated federal authority does not begin to impinge on the state's autonomy in the way federal preclearance of state legislation might be thought to do. Moreover, scrutiny of an individual permit of course has but limited effect on the state NPDES program as a whole. Second, and perhaps more important, for a citizen concerned that a discharger meet the strict federal requirements of the 1972 Amendments, there is no avenue for challenging the terms of a permit once EPA has allowed it to issue. Discharge in compliance with the terms of a permit is with very limited exceptions deemed compliance with the Amendments. See § 402(k), 33 U.S.C. § 1342(k). A citizen may sue to enforce the terms of a permit, but he or she may not complain that those terms themselves fail to implement the applicable guidelines and requirements. The very limited review we have outlined over EPA's supervisory role in this critical process of translating the Amendment's requirements into the terms of individual permits is fully justified in light of this balance of interests, a balance we find mandated by the majority's analysis in Morris.