Alaska Eskimo Whaling Commission v. U.S. Environmental Protection Agency, 791 F.3d 1088 (9th Cir. 2015)
In this case, the Alaska Eskimo Whaling Commission (AEWC) filed a petition for review on behalf of native Alaskan villages that engage in subsistence hunting of bowhead whales, seeking a remand to the United States Environmental Protection Agency (EPA) for the addition of further restrictions on a permit issued by EPA. The permit at issue allows, subject to regulations, the discharge of waste streams into the Beaufort Sea by oil and gas exploration facilities.
EPA issued the permit pursuant to the National Pollutant Discharge Elimination System (NPDES) permit program of the Clean Water Act (CWA). The permit authorized the discharge of thirteen different types of waste streams subject to specific limitations and requirements. Before issuing the permit, EPA was required to determine that the discharges would not cause an unreasonable degradation of the marine environment.
In challenging the permit, the AEWC argued that EPA failed to adequately consider the extent to which the authorized discharges would interfere with the native communities’ fall hunt by diverting the migratory routes of the whales, thereby making hunting more dangerous. Prior to oral argument, EPA conceded in a letter to the court that the agency had recently discovered that the model used to evaluate the effect of the discharges had not included noncontact cooling water discharges. Because EPA failed to evaluate all authorized discharges, the court remanded to EPA for reconsideration of what effect the noncoolant water discharges could have on the marine environment, and specifically on the migratory paths of bowhead whales.
The court reviewed the AEWC’s challenge to EPA’s actions under the arbitrary and capricious standard of the Administrative Procedure Act. As the court explained, under that standard, the reviewing court evaluates the propriety of an administrative agency’s determination based solely on the grounds the agency used to make the determination. If those grounds are inadequate or improper, the court must remand rather than attempt to deduce which pieces of evidence the agency may have consulted before making its decision.
In reviewing the agency’s determination, the court examined EPA’s initial explanation of its permitting decision, which cited a specific model the agency used to evaluate the level of dilution of each of the permitted discharges. In conjunction with review of EPA’s explanation of its permitting decision, the court reviewed the letter filed by EPA acknowledging that the agency did not include noncontact cooling water in the model. EPA’s oversight is important because the agency issued the permit under paragraph (a) of the regulatory requirements, which made issuance of the permit contingent on the agency determining that the discharges would not result in unreasonable degradation of the marine environment. By failing to consider the noncontact cooling water discharges, EPA did not fully meet its requirement to evaluate all discharges prior to issuing the permit. Therefore, depending on EPA’s findings with regard to the noncontact cooling water, the permit might no longer be issuable under paragraph (a). In that case, the agency would have to issue the permit under paragraph (c), which imposes additional regulations on permits.
The court was unable to conclude from the data and information on record whether EPA’s error in failing to include cooling water in its model would have affected any of the regulations associated with the permit. Therefore, the court remanded to EPA for reconsideration of its determination that discharge of noncontact cooling water would not cause unreasonable degradation of the marine environment.
The court declined to review the AEWC’s other claims challenging the sufficiency of EPA’s analysis in its permitting decision. In declining review, the court held that unlike the findings as to noncontact cooling water, EPA’s factual findings with respect to the other discharges were supported by the administrative record and therefore entitled to deference. Thus, the court granted in part AEWC’s petition and denied the petition in all other respects.
- Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2012). The NPDES program is codified at id. § 1342.↵
- 40 C.F.R. § 125.123(a) (2015).↵
- 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5225, 5372, 7521 (2012). The standard of review is set forth in id. § 706.↵
- 40 C.F.R. § 125.123(a) (2015).↵
- Id. § 125.123(c).↵