Grand Portage Band of Lake Superior Chippewa v. United States Environmental…

Background

The Grand Portage Band of Lake Superior Chippewa and Fond du Lac Band of Lake Superior Chippewa challenged the Environmental Protection Agency’s approval of Minnesota’s 2021 revisions to its water-quality standards. The Bands alleged that the approval was arbitrary, capricious, and contrary to the Clean Water Act and the Administrative Procedure Act. They asked the court to set aside the approval.

Before the revisions, Minnesota used numeric limits for certain pollutants in waters designated for industrial consumption and irrigated agriculture. The 2021 revisions replaced many of those limits with narrative standards—qualitative requirements describing the condition water must have to protect a designated use. Minnesota also adopted methods for translating those narrative requirements into numeric limits in pollution-discharge permits.

The revisions did not change Minnesota’s separate numeric, narrative, and biological standards for aquatic life and wild rice. The EPA concluded that those unaffected standards would continue to protect those uses, including when aquatic life or wild rice was the most sensitive use in a waterbody. The Bands have treaty-reserved rights to harvest wild rice and other resources in Minnesota waters.

Claims and procedural matters

The Bands challenged the EPA’s approval on four main grounds: the removal of numeric criteria was improper; the EPA failed to adequately consider effects on downstream aquatic life and wild rice; the EPA failed to adequately consider the Bands’ treaty-reserved rights; and the EPA failed to consider Minnesota’s implementation and enforcement history.

The court held that the Bands had standing to challenge the Class 3 industrial-consumption standards. It determined that their interests in protecting Minnesota waters and exercising treaty-reserved rights were sufficiently related to the Clean Water Act’s purposes.

The court also refused the Bands’ request to take judicial notice of several documents outside the administrative record. In reviewing agency action under the Administrative Procedure Act, the court generally examines the record that was before the agency. The court found that the Bands had not made the required strong showing of bad faith or improper conduct to justify considering the additional materials.

Court’s analysis

The court reviewed the EPA’s decision under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard. Under that standard, the court could not substitute its judgment for the agency’s and asked whether the EPA examined the relevant information and gave a rational explanation for its decision.

The court upheld the EPA’s approval of the replacement of numeric criteria. Minnesota had concluded, based on technical literature and industry surveys, that statewide numeric criteria were no longer scientifically sound for industrial consumption and irrigated agriculture because the relevant water-treatment and agricultural needs varied substantially. The court held that numeric criteria may be possible in some circumstances but are not required when they lack a sound scientific basis.

The court found that the EPA adequately considered the potential effects on aquatic life and wild rice. Although the court said the EPA could have provided more analysis, it concluded that the agency reasonably relied on the separate standards protecting those uses. The court held that the Clean Water Act did not require standards designed for industrial and agricultural uses to continue providing incidental protection for other uses indefinitely.

The court also held that the EPA sufficiently considered the Bands’ treaty-reserved rights. The agency consulted with Tribal representatives, reviewed Tribal comments, and treated its analysis of aquatic life and wild rice as also addressing related concerns about treaty-reserved rights. The court criticized the limited nature of the consultation but concluded that the law did not clearly require more and that the agency’s decision was not arbitrary or capricious.

Finally, the court rejected the argument that the EPA was required to consider Minnesota’s past difficulties implementing and enforcing narrative standards when deciding whether to approve the revisions. The court stated that the applicable regulations required the EPA to determine whether the standards met regulatory requirements, including protecting designated uses, but did not expressly require an evaluation of how Minnesota might implement and enforce them.

Disposition

The court denied the plaintiffs’ motion for summary judgment. It granted the defendants’ motion for summary judgment, the motion filed by the Coalition of Greater Minnesota Cities, Range Association of Municipalities and Schools, Minnesota Chamber of Commerce, Cleveland-Cliffs, Inc., and United States Steel Corporation, and the Minnesota Pollution Control Agency’s motion for summary judgment. The court ordered judgment to be entered accordingly.