Nat. Res. Def. Council, Inc. v. U.S. EPA - 859 F.2d 156 (D.C. Cir. 1988)

Rule:

The National Environmental Policy Act, 42 U.S.C.S. § 4321 et seq., does not expand an agency's substantive powers. Any action taken by a federal agency must fall within the agency's appropriate province under its organic statutes.

Facts:

These consolidated cases arise out of the Environmental Protection Agency's issuance of regulations implementing the National Pollution Discharge Elimination System (NPDES) permit program, established under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (1982). Although numerous issues are raised, they fall into eight general areas or categories. The first set of challenges involves regulations promulgated by EPA in furtherance of its obligations under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. (1982). Also challenged are regulations that (2) establish the rules for transfer of authority over the NPDES permitting program to the states and supervision of the state programs; (3) permit the establishment of permit limits in terms of "toxicity"; (4) permit the use of non-adversary panel procedures ("NAPP" or "NAP procedures") for the issuance of initial permits and variances; (5) prohibit "backsliding" from permit limits when subsequent guidelines have become more lax; and (6) define permit limits in "gross" terms, giving credit for pollutants in intake waters only in certain limited circumstances. Industry challenges EPA's refusal to provide an "upset defense" for noncompliance with water-quality-based permit limits; that is, a defense based on a showing that noncompliance was due to factors beyond the permittee's control. Finally, NRDC challenges on several fronts EPA's regulation providing for continuances of out-of-date permits pending renewal by the agency.

Issue:

Does the EPA have authority to impose conditions in permits that were unrelated to effluent limits?

Answer:

No.

Conclusion:

The controversy lies in the nature of the decision NEPA authorizes the agency to make. As EPA saw it, NEPA provides the agency with "supplemental authority." This authority, it is said, permits EPA not only to consider additional environmental factors, but to act on these factors by imposing any condition necessary to account for the environmental effects of the entire new facility. This misapprehended the nature and import of NEPA. True enough, NEPA instructs the agency to consider all environmental effects of any "major Federal action" and to incorporate this information into its final decision. NEPA does not, however, expand the range of final decisions an agency is authorized to make. Here, the "major Federal action" subject to NEPA review is identified in section 511(c) (1): the issuance of a permit to discharge pollutants. In fulfillment of its NEPA-mandated duty, EPA is to consider all "direct, indirect, and cumulative" environmental effects of the discharge of pollutants by the potential permittee.  Having done so, EPA can properly take only those actions authorized by the CWA--allowing, prohibiting, or conditioning the pollutant discharge. And, contrary to EPA's assumption, the CWA does not empower the agency to regulate point sources themselves; rather, EPA's jurisdiction under the operative statute is limited to regulating the discharge of pollutants. Thus, just as EPA lacks authority to ban construction of new sources pending permit issuance, so the agency is powerless to impose permit conditions unrelated to the discharge itself.