Nov 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-74872. Petitioner Akiak Native Community and other petitioners and intervenors (collectively Petitioners or Akiak) seek review of the approval by the United States Environmental Protection Agency (EPA) of the State of Alaska's application to assume responsibility for administration of portions of the National Pollutant Discharge Elimination System (NPDES), pursuant to section 402(b) of the Clean Water Act (CWA). Petitioners contend that EPA did not adequately ensure: (1) that Alaska state law will provide the same opportunities for judicial review of permitting decisions as required by federal law; (2) that the State has the necessary enforcement tools to abate permit violations; and, (3) that subsistence resources will be protected as mandated by the Alaskan National Interest Lands Conservation Act (ANILCA).
In a split decision, the Appeals Court majority said, "We conclude that the EPA's decision to transfer authority to the State of Alaska was not arbitrary or capricious. Accordingly, we deny the petition for review." In part, the majority said, " The Supreme Court's recent decision in Home Builders [National Association of Home Builders v. Defenders of Wildlife (No. 06-340), See WIMS 6/26/07] provides guidance as to whether the EPA's transfer of the NPDES program to the State of Alaska triggers the requirement of a subsistence evaluation under ANILCA. In Home Builders, public interest groups challenged the EPA's transfer of the NPDES program to the State of Arizona, arguing that the EPA failed to consider the effects such transfer would have on endangered and threatened species under section 7(a) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a). 551 U.S. at 649. The Supreme Court held that requiring the EPA to comply with section 7(a) of the ESA would place the CWA and the ESA in conflict, for it would add a tenth criteria to the nine established criteria a state program must meet for transfer approval under section 402(b) of the CWA, 33 U.S.C. § 1342(b). Id. at 663-64. The Court noted that '§ 402(b) does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer "shall" be approved if the specified criteria are met.' Id. at 663. The Court concluded that requiring compliance with section 7(a) would "effectively repeal § 402(b)'s statutory mandate by engrafting a tenth criterion onto the CWA."
The dissenting (in part) decision said, "I agree that the ANILCA provision and the lack of administrative penalties in Alaska law do not undermine the grant of NPDES authority from the EPA to the State of Alaska, but I strongly disagree with the majority's conclusion that Alaska's 'loser pays' attorney's fee system will not adversely affect the public's ability to bring state court challenges to permitting decisions."
Access the complete opinion and dissent (click here). Access the Supreme Court decision in Home Builders, the Syllabus and the dissenting opinions (click here).
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