Oral argument in the Center for Regulatory Reasonableness (CRR) v. EPA, Case No. 14-1150 (D.C. Cir.) matter has been set for October 21, 2016.

At issue is the March 25, 2013 decision of the Eighth Circuit in Iowa League of Cities v. EPA, Case No. 11-3412, which vacated US EPA’s across-the-board prohibitions on the use of mixing zones for primary contact recreation waters and “blending” for peak wet weather flows. The Eighth Circuit’s decision is important for entities that have relied on blending technology in their facilities or mixing zones in primary contact waters to meet water quality standards and clarifies that application of effluent limitations to internal treatment points is beyond the statutory authority of US EPA which is limited to promulgation of limitations for discharges of pollutants “from point sources into navigable waters.”  33 U.S.C. §1362(11). The lawsuit also involved the successful challenge of US EPA letters outlining the Agency’s blending policy and therefore has broad implications for what constitutes a challengeable agency action.

Perhaps wary of establishing unfavorable precedent, US EPA opted not to appeal that decision and invoked the doctrine of intercircuit nonacquiescence in taking the position that the Eighth Circuit’s decision applies as binding only in that circuit and would be applied on a case-by-case basis in other jurisdictions. In response, the Center for Regulatory Reasonableness—headed by the attorneys who won the Eighth Circuit appeal—filed a petition for review in the D.C. Circuit challenging correspondence outlining US EPA’s position in the wake of the decision and arguing that the Court should require the Agency to apply the Eighth Circuit’s ruling nationwide.

In particular, CRR argues in its Petitioner Brief and Reply Brief that US EPA’s unofficial policy position fails to comply with the notice and comment rulemaking requirements of the Administrative Procedure Act and allowing intercircuit nonacquiescence would run afoul of Clean Water Act’s (CWA) judicial review procedures that seek to ensure uniformity by preventing more than one circuit court from reviewing the same Agency action.  In its Response Brief, US EPA argues that the Court lacks jurisdiction over CRR’s attempted challenge of Agency correspondence and that the CWA’s judicial review exclusivity provisions apply only to challenges of the sort not at issue here (i.e. those involving a “broadly published regulation following a public notice-and-comment process and with unquestionable nationwide reach”).

Not surprisingly, given that the lawsuit targets US EPA’s correspondence after the Eighth Circuit’s opinion, the parties have exchanged several rounds of briefing regarding the appropriate scope of the administrative record.  Most recently, CRR has argued that internal policy communications obtained through a Freedom of Information Act (FOIA) request, some of which US EPA claims were privileged and inadvertently disclosed, evidence the Agency’s lack of candor with the Court regarding its blending policy and merit sanctions.  All of these issues are expected to be rolled into the upcoming oral argument.