Arkansas v. Oklahoma
503 U.S. 91 (1992)

  • Fayetteville, Arkansas applied for an EPA permit to dump sewage into an Arkansas river, as they were required to under Clean Water Act 402(a)(1) (aka the National Pollution Discharge Elimination System (NPDES)).
    • Turns out, the river drained into the Illinois River which crossed the border into Oklahoma was a few miles downstream of the dumping point.
    • Btw, EPA was charged with granting the NPDES permit because they had not delegated the ability to Arkansas.
      • Under NPDES, States can get the authority to issue NPDES permits, but they have to have an implementation plan that is approved by EPA. Arkansas hadn't done that yet.
  • EPA granted the permit, with the caveat that a study needed to be undertaken to ensure that the sewage would not violate any of Oklahoma's water quality regulations.
    • Turns out, Oklahoma had designated the river a 'scenic river' and the regulation said that, "no degradation of water quality shall be allowed."
      • That means that no dumping of sewage into the river was allowed at all.
  • Oklahoma challenged the permit with EPA, alleging that the Fayetteville dumping would degrade the water quality in the river in violation of Oklahoma's water quality standards.
  • An EPA Administrative Law Judge (EPA ALJ) ruled that the Oklahoma standards would not be violated unless the discharge had more than a de minimus impact on the river. Oklahoma appealed.
    • The sewage resulted in undetectable amounts of change in the Illinois River, and so really had no impact on Oklahoma water quality, even if the dumping technically violated Oklahoma's environmental regulations.
  • EPA's Chief Judicial Officer (EPA CJO) remanded.
    • EPA CJO found that under Clean Water Act 301(b)(1)(C), NPDES permits must impose effluent limitations necessary to comply with downstream States' water quality standards.
    • EPA CJO also found that the NPDES permit should be upheld if a scientific study showed that the discharges would not cause a detectable violation of Oklahoma's water quality standards.
      • "Unless there is some method for measuring compliance, there is no way to ensure compliance."
  • On remand, the EPA ALJ found that there was no detectable violation, so the permit was ok. Both Arkansas and Oklahoma appealed.
    • Arkansas argued that the Clean Water Act did not require them to comply with Oklahoma's water quality standards.
    • Oklahoma argued that the dumping had produced a detectable violation.
  • The Appellate Court reversed EPA issuance of the permit.
    • The Appellate Court rejected both arguments, saying that Arkansas must comply with Oklahoma water quality standards, and that there had been no detectable violation.
    • The Appellate Court sua sponte found that, "where a proposed source would discharge effluents that would contribute to conditions currently constituting a violation of applicable water quality standards, such a proposed source may not be permitted."
      • Basically, the Appellate Court found that the Illinois River was already polluted and out of compliance with Oklahoma law. Therefore, any addition of more pollutants, no matter how small, could not be tolerated.
  • The US Supreme Court reversed the Appellate Court and ordered EPA to issue the permit.
    • The US Supreme Court did not decide whether the Clean Water Act required that EPA apply the water quality standards of downstream States when considering whether to issue a permit.
    • The Court found that the Clean Water Act gave EPA the authority to consider downstream States water quality standards.
      • 40 CFR 122.4(d) said that EPA should not grant a NPDES permit "when the imposition of conditions cannot ensure compliance with the applicable water quality standards of all affected States."
      • The Court found that EPA had broad discretion to establish conditions for NPDES permits.
    • The Court rejected the Appellate Court's ruling that prohibited any discharge of effluent that would reach waters already in violation of existing water quality standards.
      • "The Appellate Court exceeded the legitimate scope of judicial review of agency adjudication."
        • The courts can't come up with their own standard, they can only rule as to whether EPA's standard is reasonable or not.
    • The Court found that EPA was required to interpret Oklahoma's water quality standards, and as long as they do so reasonably, their interpretation stands, even if it is at odds with how Oklahoma Courts interpret the standard.
      • Basically, deference should be given to the EPA CJO, who found that the dumping was in compliance as long as it was undetectable.
  • Oklahoma could also have tried to sue under the common law claim of nuisance.
    • Most likely, they would be preempted from suing in Federal Court because the Court would have likely held that they would be preempted by the Clean Water Act.
      • See Illinois v. City of Milwaukee (406 U.S. 91 (1972)).
    • They could have tried to sue under State common law nuisance, but they would have to bring the case in an Arkansas State Court, not an Oklahoma State Court.
      • The receiving State's nuisance law is preempted, but the polluting State's law is not.
      • See International Paper Co. v. Ouellette (479 U.S. 481 (1987))