A new decision in the U.S. Ninth Circuit Court of Appeals gives new influence to objection letters sent by the U.S. Environmental Protection Agency to state and local environmental agencies, and may open the door for the EPA to employ informal methods of strict environmental enforcement.  This would give the embattled, budget-restricted U.S. EPA less costly means of preserving its enforcement programs − all the more significant in light of the Trump Administration’s deep budget cuts and other restrictions on the agency.

The Ninth Circuit dismissed a petition by Southern California Alliance of Publicly Owned Treatment Works (SCAP) against the U.S. EPA, finding the court lacked jurisdiction to review an EPA objection letter to a draft stormwater discharge permit under the U.S. Clean Water Act (CWA).

The U.S. EPA’s objection said the Los Angeles Regional Water Quality Control Board’s draft permits needed specific numeric effluent limits. SCAP, an alliance of public treatment plants, argued such limits were not requirements under the CWA.  The Los Angeles Board responded, accepting the EPA’s objections and incorporating the limits into the permits themselves. SCAP sought review of the EPA’s objection letter, claiming that it incorporated guidance contrary to the CWA and was a de facto regulation, whereby EPA sidestepped the Administrative Procedures Act and the mandatory comment period.

On April 12, 2017, the Ninth Circuit rejected SCAP’s arguments, concluding that the U.S. EPA’s objection letter was not the same as an “issuance or denial” of the permit, meaning the Ninth Circuit lacked the power to review it. Rather, SCAP would need to exhaust administrative review with the governing agency, the State Water Resources Control Board.  The U.S. Ninth Circuit noted that the Los Angeles Regional Board “may take a more aggressive view of the requirements for keeping the state’s waters clean. In that circumstance, any request for review of the U.S. EPA’s Objection Letter would be moot…”

This case suggests that the U.S. EPA, losing one-third of its budget and numerous employees and programs, might have an informal, cost-effective and quick mechanism to advance more stringent environmental programs and enforcement.  While the U.S. EPA’s “objection letters” are technically non-binding statements of advice, a state agency would be foolish to ignore one − the U.S. EPA has the ultimate power to transfer most environmental permits out of the state’s hands back to the federal level.  Some would argue the U.S. EPA may thereby exert de facto rulemaking power short of actual comment and adherence to the APA.  The Ninth Circuit’s refusal to undertake an independent review of the objection letter, and its observation that states may enact more aggressive environmental requirements, suggests it is unlikely that a state appeal would be successful.

This case paves the way for what could be a major element of future environmental enforcement, at least in the near term: informal objections and inquiries by the U.S. EPA or other federal agencies to impose robust standards in lieu of new rulemaking or legislation.


Find out more about the implications of this case by contacting any of the authors.


Kimberly Hyde is an associate at DLA Piper.  She has experience representing clients in several areas of complex business and commercial litigation, with a focus on environmental litigation under CERCLA, RCRA, the cleanup of contaminated sites and environmental compliance and transactional due diligence.  Kimberly also has experience representing clients in product liability and class action litigation, including claims under the Telephone Consumer Protection Act (TCPA) and California Business & Professions Code §17200 and the Consumers Legal Remedies Act §1750.


George Gigounas is a Partner at DLA Piper.  He resolves environmental and product-related litigation, enforcement, and compliance issues for DLA Piper clients with industrial, manufacturing, and product-based businesses.  His environmental practice builds on a strong background in environmental science, a familiarity with the technical, chemical, and mechanical processes involved in industrial operations, and an understanding of the geophysical and toxicity issues arising with hazardous wastes, toxic exposures, and environmental remediations.



Chris Campbell is a partner in DLA Piper’s Product Liability and Mass Tort practice group, recently recognized by Law360 as the 2013 Product Liability Group of the Year.  Chris serves as head of litigation in DLA Piper’s Atlanta office, while also working out of the New York office.  Chris is a 2000 graduate of Harvard Law School with experience in all phases of litigation, including first-chairing jury and bench trials in state and federal courts and arguing appeals.


This are was originally published on the DLA Piper website and can be found here.