Natural Resources Defense Council v. United States Environmental Protection Agency

The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), have challenged aspects of the Environmental Protection Agency’s (EPA) recent Clean Water Act (CWA) storm water discharge rule. This rule is entitled “Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities,” 71 Fed.Reg. 33,628 (Jun. 12, 2006) (codified at 40 C.F.R. § 122.26 ). 1 The rule ex *594 empts from the permitting requirements of the CWA discharges of sediment from oil and gas construction activities that contribute to violations of water quality standards. Petitioners contend that the rule’s NPDES permitting requirement exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under section 402(Z)(2) of the CWA, 33 U.S.C. § 1342 (Z)(2), as amended by section 323 of the Energy Policy Act of 2005, 33 U.S.C. § 1362 (24), and under the Administrative Procedure Act (APA), 5 U.S.C. § 706…

dissenting:

I agree with the majority that at step one of the analysis under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), the plain language of section 402(Z )(2) of the Clean Water Act (“section 402(Z)(2)”), 33 U.S.C. § 1342 (Z)(2), as amended by the Energy Policy Act of 2005, does not unambiguously indicate whether Congress intended the exemption from National Pollutant Discharge Elimination System (“NPDES”) permitting to cover storm water discharges contaminated solely with sediment. I further agree that the scant legislative histories for section 402(Z )(2) and the relevant portions of the Energy Policy Act do not elucidate Congress’s clear intent. Therefore, as the majority correctly concludes, this dispute must be resolved at step two of the Chevron analysis, with the question of whether the Environmental Protection Agency (“EPA”) provided a — not the only or the best — permissible interpretation of section 402(Z )(2). It is at this point that I respectfully part course with the majority and accord EPA’s permissible interpretation appropriate deference.

The majority opinion holds that “EPA’s interpretation of…

Sharon Buccino, Aaron Colangelo and Margaret Renner, Natural Resources Defense Council, Washington, D.C., for the petitioner.

David A. Carson, United States Department of Justice, Environmental & Natural Resources Division, Denver, CO, for the respondent.

Thomas C. Jackson, Baker Botts L.L.P., Washington, D.C., for amicus curiae American Petroleum Institute.

Janet Lynn McQuaid, Fulbright & Jaworski L.L.P., Austin, TX, for amicus curiae Independent Petroleum Association of America.

Before: JANE R. ROTH, [*] SIDNEY R. THOMAS, and CONSUELO M. CALLAHAN, Circuit Judges.

ROTH, Circuit Judge:

The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), have challenged aspects of the Environmental Protection Agency's (EPA) recent Clean Water Act (CWA) storm water discharge rule. This rule is entitled "Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities," 71 Fed.Reg. 33,628 (Jun. 12, 2006)…