Environmental Defense Center, Inc. v. United States Environmental Protection Agency

Opinion by Judge JAMES R. BROWNING; Partial Concurrence and Partial Dissent by Judge TALLMAN.

Petitioners challenge a rule issued by the United States Environmental Protection Agency pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1387 , to control pollutants introduced into the nation’s waters by storm sewers.

Storm sewers drain rainwater and melted snow from developed areas into water bodies that can handle the excess flow. Draining stormwater picks up a variety of contaminants as it filters through soil and over pavement on its way to sewers. Sewers are also used on occasion as an easy (if illicit) means for the direct discharge of unwanted contaminants. Since storm sew *405 er systems generally channel collected runoff into federally protected water bodies, they are subject to the controls of the Clean Water Act. In October of 1999, after thirteen years in process, the Environmental Protection Agency (“EPA”) promulgated a final administrative rule (the “Phase II Rule” 1 or “the Rule”) under § 402(p) of the Clean Water Act, 33 U.S.C. § 1342 (p), mandating that discharges from small municipal separate storm sewer systems and from construction sites between one and five…

concurring in part and dissenting in part:

I concur in some of the Court’s conclusions, but I respectfully disagree with two significant sections of the majority’s opinion. I cannot agree with Section II.A.2, which upholds the constitutionality of the Environmental Protection Agency’s (“EPA”) final administrative rule (the “Phase II Rule”), § 402(p) of the Clean Water Act, 33 U.S.C. § 1342 (p), against the Municipal Petitioner’s Tenth Amendment challenge. Because I believe that the Phase II Rule infringes upon state sovereignty by compelling the states to enact and administer a federal regulatory program that includes regulation of third parties, and that the Alternative Permit Option suffers from the same constitutional flaw, I respectfully dissent.

I also dissent from Section II.B of the majority’s opinion, which remands the Phase II Rule because its system of general permits is “arbitrary and capricious.” I believe EPA’s design of a system of general permits supported by notices of intent was a reasonable exercise of EPA’s administrative discretion.

I

No party disputes that the Phase II Rule is a federal regulatory scheme to be carried out by the states. At issue, however,…