Saturday, October 29, 2011

EPA and Defendant Intervenors File Briefs in Opposition of Motion to Complete Administrative Record in AFBF v. EPA (11-cv-00067)

On October 28, 2011, both the U.S. Environmental Protection Agency (EPA) and the Defendant Intervenors (Chesapeake Bay Foundation, Citizens for Pennsylvania's Future, Defenders of Wildlife, Jefferson County Public Service District, Midshore Riverkeeper Conservancy, and National Wildlife Federation) filed Briefs in Opposition to the American Farm Bureau Federation's Oct. 11, 2011 Motion to Complete the Administrative Record (filed jointly with the National Association of Home Builder). The administrative record was filed by EPA on Sept. 1, 2011.

EPA's Memorandum in Opposition to Plaintiff's Motion to Complete the Administrative Record

The EPA argues the Plaintiffs have not met their burden of proof that expansion of the administrative record is necessary because (1) Plaintiffs have not shown the administrative record fails to demonstrate factors considered by EPA in establishing the Bay TMDL; and (2) Plaintiffs have not established that EPA acted in bad faith when compiling the administrative record. Additionally, EPA argues the Plaintiffs have failed to show agency bias and therefore have not overcome the presumption against discovery in Administrative Procedure Act (APA) cases. Lastly, EPA argues that the Plaintiffs' claim that the standard for discovery is expanded in record cases is a misinterpretation of the precedent.

Defendant Intervenors' Opposition to Plaintiffs' Motion to Expand the Record and for Discovery

The Defendant Intervenors argue that the Plaintiffs have not satisfied the legal standard for expanding the administrative record because compilation of that record is in the hands of the agency and afforded a presumption of regularity; therefore, expansion of the administrative record is an exceptional request.  Defendant Intervenors argue that only one provision of the APA allows a reviewing court to look beyond the administrative record, however, they argue that the Supreme Court has held the provision to control in only two situations: (1) "when the action is adjudicatory in nature and the agency fact finding procedures are inadequate," and (2) "when issues that were not before the agency are raised in a proceeding to enforce non-adjudicatory agency action." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). They argue that neither of these situations exist; therefore, the record should not be expanded.

Additionally, Defendant Intervenors argue that the "five emails between EPA staff and Virginia agency employees concerning development of Virginia’s Watershed Implementation Plans (WIP)" should not properly be part of the administrative record because the development of state WIPs are not relevant to the matter before the court. Furthermore, the ANPC/LimnoTech Report is not scientifically valid and should not properly be part of the record because it was not created until after the close of the comment period. Lastly, Defendant Intervenors argue that discovery of EPA officials should not be allowed. They argue that Plaintiffs' claim that EPA must have generated more documents in response to the ANPC/LimnoTech Report is based on faulty logic, and because the ANPC/LimnoTech Report was "deeply flawed" it is not surprising there were few pertinent documents in the record.

Scroll previous posts following this litigation, AFBF v. EPA (11-cv-00067), here.



Written/Posted by Tanya J. Cramoy, Research Assistant

Tuesday, October 18, 2011

Case Law Update: CBF Granted Intervention Order in AFBF v. EPA

On October 13, 2011, the Chesapeake Bay Foundation, Inc. (CBF), along with several other environmental groups and agencies, were granted a motion to intervene as defendants in American Farm Bureau Federation v. Environmental Protection Agency (M.D. Pa.). The court agreed that CBF has a legal interest in preserving the EPA's Total Maximum Daily Load (TMDL), and that CBF would be impaired by a ruling vacating TMDL for the Chesapeake Bay. TMDL is a term in the Clean Water Act and represents the maximum amount of pollution a body of water can endure while still meeting water quality standards. The original case, filed in January of 2011 by the American Farm Bureau Federation, asked the court to vacate the EPA's TMDL for the Chesapeake Bay. Also joining as intervenors are Citizens for Pennsylvania’s Future (PennFuture), Defenders of Wildlife, Jefferson County Public Service District, Midshore Riverkeeper Conservancy, National Wildlife Federation, National Association of Clean Water Agencies, the Maryland Association of Municipal Wastewater Agencies, Inc., the Virginia Association of Municipal Wastewater Agencies, Inc., and Pennsylvania Municipal Authorities Association.

Docket Number: 1:11-CV-0067

Written by Andy Schwabenbauer, Research Fellow
October 18, 2011

Tuesday, October 4, 2011

Ag Law Center Video Case Summary of AFBF v. EPA Available Online

A summary of the case Am. Farm Bureau Fed'n v. EPA (M.D. Pa. filed Jan. 10, 2011), identifying the parties, the plaintiffs' claims and prayers for relief, and the current stage of the litigation, is now available online.

View the AFBF v. EPA Case Summary Video here (link to YouTube).

Further videos, produced by the Agricultural Law Resource and Reference Center, addressing legal developments related to Chesapeake Bay restoration are forthcoming and will be posted on this blog when available.

Written by Tanya J. Cramoy, Research Assistant