FOLLOW US

A federal judge in Oregon came down hard last week against the Northwest Environmental Advocates (NWEA), which sought EPA to step up its enforcement of pollution limits for water contamination. The conservation group had contended that the state's failure to produce Total Maximum Daily Load (TMDL) plans for many polluted waterways--some of which have remained plagued by pollution problems going back decades--was a violation of law.

EPA wins in water pollution suit : State Priorities Not a Basis for EPA Action

The judge, U.S. District Judge Marco A Hernandez, tossed the conservation group's case aside by saying it boiled down to Oregon simply wanting its green projects first. NWEA's lawsuit zeroed in on a number of TMDL plans regulators with the state had that they deferred as being "low priority," and NWEA argued those neglects were illegal.

The judge's decision illustrates the issue as complex, noting that Oregon has not set timelines for these low-priority plans yet is still moving forward with more high-priority projects. Worse, the nature of TMDL plans (dealing with nonpoint source pollution caused by a plethora of sources) made it impossible to determine which two specific listing-triggered ones were in play and this was problematic for the court.

Challenge Filed to EPA Over Emergency Priority Rankings

While the judge balked at NWEA's request to have Judge Reed II order immediate EPA intervention, he did provide some relief. The court found the EPA's 2020 approval of Oregon's TMDL priority rankings to be arbitrary and capricious. That said, the replacement does not pertain to additional 2022 priority list approvals. The judge's ruling is a "declaratory judgment," meaning it provides legal direction for how TMDL prioritization should occur in the future, but does not demand that existing MDNR and Board of Aldermen decisions be altered.

The Post also points out Oregon's resource limitations.

However, Judge Hernandez emphasized Oregon's resource constraint in dealing with these issues by referring to the limited staff and resources at its Department of Environmental Quality (DEQ), which has struggled to keep up with all TMDL development requests. The court held that although Oregon has not shown a specific plan to address the low-priority TMDLs, it also has not "summarily declined" them.

So the court said that it "cannot find" Oregon had decided not to submit TMDLs in those categories, "much less conclude unequivocally and clearly.

Consequently, time spent researching attorneys you trust and can afford (through sites like Contact Law) will likely make life much harder for the other side.

The case, as adjudicated on August 2 in oral arguments, will still play out. James N. Saul from the Wild & Scenic Law Center representa a la empresa también autora del test, NWEA The EPA was represented by Gus Maxwell, Sarah A. Buckley and Albert Lin of the U.S. Department of Justice's Environment and Natural Resources Division. Identified themselves as Ellen F. Rosenblum, Sadie Forzley, and Nina Englander of the Oregon Department of Justice (Oregon DEQ)

The key takeaway remains the tightrope walk between state environmental wishes and legal pollution control requirements, as dealt with in increment by untested readings of SCCs.