Natural Resources Defense Council v. Costle
568 F.2d 1369 (D.C. Cir. 1977)

  • The Federal Water Pollution Control Act Amendments (the forerunner to the Clean Water Act) 402 required that EPA regulate point sources of pollution.
  • EPA decided that this was an almost unmanageable task, and the EPA Administrator decided to exempt certain classes of point sources from the permitting requirements of 402.
    • Exempted sources included some forestry and farming sources, storm sewers, plus some other things.
    • EPA felt that these exemptions would allow them to focus on the big polluters without having to waste energy going after point sources they felt didn't need to be regulated.
  • The Natural Resources Defense Council (NRDC) sued, claiming that EPA did not have the authority to exempt sources under 402.
    • The NRDC argued that the language of 402 included all sources and the EPA could not choose to not enforce the law.
    • EPA argued that since they had the authority to grant or deny permits under 402, they must also have the authority to exempt classes from permitting requirements altogether.
  • The Trial Court found for NDRC and told EPA to enforce the law. EPA appealed.
    • The Trial Court found that the FWPCA did not grant the EPA the authority to exclude any class of point sources from the permit program.
  • The Appellate Court affirmed.
    • The Appellate Court found that technical or administrative infeasibility may result in adjustments to the permit programs, but it does not authorize the EPA Administrator to exclude relevant point sources from the program.
      • The Court suggested that EPA lower their permitting requirements for certain circumstances to improve feasibility.
        • For example, they could reduce the permitting requirements to simply requiring that the permittee monitor and report effluent levels.
    • The Appellate Court also suggested that EPA could create a system of area-wide permits to help alleviate the administrative burden.