A federal district court in Ohio has endorsed the “constructive
submission” doctrine as a way to require the EPA to set standards for polluted
bodies of water when states neglect or refuse to set those standards. Environmental
Law & Policy Center v. EPA, Docket No. 3:19-cv-00295 (November
13, 2019, N.D. Ohio). The Clean Water Act citizens suit, which was filed by two
environmental groups, asks EPA to require Ohio’s EPA to adopt a legally sufficient
and adequate Total Maximum Daily Load (TMDL) for western Lake Erie.
The constructive submission doctrine was developed to
prevent states from failing to submit a list of TMDLs as required by the
EPA. Under the
doctrine, a court may interpret a lengthy failure of a state to submit TMDLs as
in fact being a “constructive submission” of a list of no TMDLs. If the
failure to act is treated as an affirmative act, then EPA’s review clock is
triggered and its failure to make a decision on the “no TMDL” list is subject
to judicial review.
Citing the most recent National Climate Assessment, the
groups claim a TMDL is especially urgent because algae blooms and nutrient
pollution problems are likely to be exacerbated by climate change. In response, the EPA asserts the constructive
submission doctrine applies only if states clearly and unambiguously refuse to
set limits.
The Court accepted the EPA’s position, but found that Ohio
had moved Lake Erie from its high priority list to its low priority list,
indicating Ohio had no plan to set its pollutant limits. The Court ruled in favor of the environmental
groups because they plausibly demonstrated Ohio clearly and unambiguously refused
to set a pollutant limit for Lake Erie.
Prior to this case, the doctrine had not been applied by any court since 2015. The ruling indicates individuals need not wait for the government to act, but may be able to treat inaction as the basis of a cause of action. The decision could encourage more environmental groups to rely on the constructive submission doctrine to prompt state agencies to act.
