[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 02, 2002
______________________ THOMAS K. KAHN
CLERK
No. 01-14587
______________________
D.C. Docket No. 94-02501 CV-MHS-1
SIERRA CLUB,
GEORGIA ENVIRONMENTAL
ORGANIZATION, INC.,
COOSA RIVER BASIN INITIATIVE
INC.,
TROUT UNLIMITED,
OGEECHEE RIVER VALLEY
ASSOCIATION, INC.,
Plaintiffs-Appellees,
versus
A. STANLEY MEIBURG, Acting Regional
Administrator,
CHRISTINE T. WHITMAN,
Administrator, the United States Environmental
Protection Agency,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY ("U.S. EPA"),
Defendants-Appellants.
______________________
Appeal from the United States District Court for the
Northern District of Georgia
______________________
(July 2, 2002)
Before EDMONDSON, Chief Judge, CARNES and SILER*, Circuit Judges.
CARNES, Circuit Judge:
The order we have before us in this appeal is based upon either an
interpretation of a consent decree or a modification of the decree. Which one of
the two the order is determines whether we have jurisdiction to review it. If the
order is a modification of the decree, instead of merely an interpretation, we have
appellate jurisdiction and the issue we must then decide is whether the district
court abused its discretion by modifying the decree as it did.
The consent decree itself resulted from a lawsuit brought by Sierra Club,
along with a collection of state and local environmental organizations, against
EPA.1 The plaintiff environmental groups (for convenience we will refer to them
collectively as Sierra Club), had sued EPA to force it to establish and implement
pollution standards for Georgia waterways. The consent decree that was eventually
*
Eugene E. Siler, Jr., U.S. Circuit Judge, for the Sixth Circuit, sitting by designation.
1
Those organizations include the Ogeechee River Valley Association, Trout Unlimited,
Georgia Environmental Organization, and the Coosa River Basin Initiative.
2
entered set out a timetable for the establishment of those standards. EPA did
establish the standards.
A couple of years after the consent decree had been entered, none of the
pollution standards EPA established as a result of the decree had actually been
implemented. Upset with the lack of progress, Sierra Club moved the district court
to reopen the consent decree and to take action compelling EPA to develop
implementation plans for the standards. EPA took the position that the State of
Georgia had the primary responsibility for implementing the standards EPA had
established. The district court deferred ruling on Sierra Club’s motion pending
Georgia’s development of the implementation plans. Once Georgia filed with the
court what it asserted were the required plans, EPA moved to have Sierra Club’s
motion to re-open and compel declared moot. Sierra Club responded that
Georgia’s implementation plans were not adequate and insisted that EPA had the
responsibility under the decree for formulating them. The district court denied
EPA’s mootness motion because it agreed with Sierra Club that the consent decree
required EPA to develop implementation plans or to ensure that those Georgia
developed were adequate to satisfy the Clean Water Act.
EPA has appealed the district court’s order refusing to dismiss as moot
Sierra Club’s motion to re-open and compel, contending that the court’s decision to
3
impose on it an implementation-plan requirement modified the decree, and that the
modification was an abuse of the district court’s discretion. Sierra Club takes the
position that the district court, when it stated EPA was required to develop
implementation plans, was not modifying but merely interpreting the consent
decree. If that is so, we lack jurisdiction over this appeal, because the only
possible jurisdictional basis for it is 28 U.S.C. § 1292(a)(1) which authorizes us to
review interlocutorily an order modifying an injunction. Sierra Club also argues
in the alternative that, even if the district’s interpretation of the decree crossed the
line into modification, thereby giving us jurisdiction to review it, we should hold
that in view of changed circumstances the modification was not an abuse of
discretion.
Our reading of the consent decree convinces us it did not require EPA to
develop an implementation plan for the water quality standards it was to set, and
the clarity of the decree on the point is sufficient that the district court’s later
imposition of such a requirement constitutes a modification of the decree. As a
result, we have jurisdiction to review the district court’s action, and we conclude
that the court abused its discretion by grafting onto the decree a substantial
modification that was not part of the original bargain between the parties.
I. BACKGROUND
4
The dispute about the terms of the consent decree plays out against the
background of the statutory and regulatory scheme established by the Clean Water
Act, 33 U.S.C. § 1251 et seq., so we will start with that scheme. Congress passed
the Clean Water Act (the “Act”) “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve
that goal, the Act gives EPA two main roles and responsibilities. The first is
issuing permits that govern individual discharges of pollutants, and the second is
setting global water quality standards for particular bodies of water.
Permits and Point Sources
Section 301(a) of the Act prohibits the discharge of any pollutants except
those that are sanctioned by a permit. 33 U.S.C. § 1311(a). The statute gives EPA
the authority to issue permits for point sources, and those permits are to establish
technology-based effluent limitations that incorporate increasingly stringent levels
of pollution control technology over time. 33 U.S.C. §§ 1311(b)(1)(A), (B), (b)(2).
The limits set out in the permits are to be based on how low current technology can
push pollution levels, and those limits are to be lowered as pollution-reducing
technology improves. Permits are issued to individual dischargers through the
National Pollutant Discharge Elimination System (NPDES) program. Id. at § 1342.
5
Like most states, Georgia administers the NPDES program within its borders
subject to EPA oversight of the states’s permit-issuing procedures.1
Permits cannot control all sources of pollution. They are aimed only at
pollution coming from a “point source,” which is “any discernible, confined and
discrete conveyance . . . from which pollutants are or may be discharged,” that
offers a particular ‘point’ to measure the amount of pollution being discharged. 33
U.S.C. § 1362(14).
Non-Point Sources, Water Quality Standards, and TMDLs
In addition to originating from point sources, pollution also comes from non-
point sources, such as runoff from farmlands, mining activity, housing construction
projects, roads, and so on. Non-point sources cannot be regulated by permits
because there is no way to trace the pollution to a particular point, measure it, and
then set an acceptable level for that point. Therefore, to regulate non-point
pollution, the Act requires states to establish water quality standards. 33 U.S.C. §§
1313(a)-(c). To determine the water quality standard, a state designates the use for
which a given body of water is to be protected (fishing, for example), and then
determines the level of water quality needed to safely allow that use. Id. at §
1
Like Georgia, most states –44 of them– are in charge of their own NPDES progam. In
the other six states EPA runs the program.
6
1313(c)(2)(A). That level becomes the water quality standard for that body of
water.
Things can get complicated. Because of non-point source pollution,
achieving the specified water quality standard in a body of water may require more
stringent limitations upon point-source discharges than would otherwise be
required under the permit-issuing regime we have previously described. If the
regulation of point-source discharges does not achieve the necessary level of water
quality, Total Maximum Daily Loads (TMDLs) come into play. Id. at §
1313(d)(1)(A), (C). A TMDL is a specification of the maximum amount of a
particular pollutant that can pass through a waterbody each day without water
quality standards being violated. Id. at § 1313(d)(1)(C).
TMDLs must be established for every waterbody within the state for which
ordinary technology-based point-source limits will not do enough to achieve the
necessary level of water quality. Id. at §§ 1313(d)(1)(A), (C). The state must
compile a list of these bodies of water in a report and submit it to EPA for
approval. Id. at §§ 1313(d)(1)(A), (d)(2). (This list is sometimes referred to as
“the 303(d) list,” because that is the section of the Act which requires each state to
prepare the list.) Each body of water on the list is known as a “water quality
limited segment” (or “limited segment” for short), see 40 C.F.R. § 130.2(j), and
7
the state must set a TMDL for every pollutant in each limited segment.2 33 U.S.C.
§ 1313(d)(1)(C).
Each TMDL serves as the goal for the level of that pollutant in the
waterbody to which that TMDL applies, allocating the total “load” – the amount
of pollutant introduced into the water, see 40 C.F.R. § 130.2(e) – specified in that
TMDL among contributing point and non-point sources. The theory is that
individual-discharge permits will be adjusted and other measures taken so that the
sum of that pollutant in the waterbody is reduced to the level specified by the
TMDL. As should be apparent, TMDLs are central to the Clean Water Act’s
water-quality scheme because, as one of the plaintiffs puts it, they tie “together
point-source and nonpoint-source pollution issues in a manner that addresses the
whole health of the water.” Brief of Appellee Ogeechee River Valley Association
at 14.
The states are primarily responsible for preparing lists of limited segments
and their corresponding TMDLs, see 33 U.S.C. §§ 1313(d)(1)(A), (C), but EPA
has approval authority over those lists. Id. at § 1313(d)(2). If EPA disapproves a
state’s list of limited segments, or a TMDL, EPA must issue its own list or TMDL.
2
A limited segment is often referred to as a “WQLS,” but given the number of other
acronyms in our discussion we will avoid that one.
8
Id. Some courts have held that a state’s failure to timely submit its TMDLs can be
taken under certain circumstances by EPA as a constructive submission of no
TMDLs, triggering EPA’s responsibility to establish its own. See Scott v. City of
Hammond, 741 F.2d 992, 996-98 (7th Cir. 1984); Kingman Park Civic Ass’n v.
EPA, 84 F. Supp. 2d 1, 5 (D.D.C. 1999) (holding that “[l]ike the majority of courts
that have confronted this quandry, this Court holds that ‘if a state fails over a long
period of time to submit proposed TMDL’s, this prolonged failure may amount to
constructive submission by that state of no TMDL’s’” (omitted citation)). We
have not addressed this issue of constructive submission yet, and need not do so in
this case because under the consent decree EPA was obligated to issue its own
TMDLs according to a prescribed timetable if Georgia continued to fail to establish
them.
Once established, TMDLs are implemented through various mechanisms,
some of which are provided in the Act, with responsibilities for implementation
divided between EPA and the states. Point-source discharges are regulated through
the federal permit regime, with TMDLs incorporated into the effluent and
technological-based limitations. 40 C.F.R. § 122.44(d)(1)(vii)(B). Although EPA
has the authority to issue permits, it has delegated that authority to the states, at
least to the majority of them, including Georgia. Even where it has delegated that
9
basic authority, however, EPA does retain the right to include additional limits in
NPDES permits when necessary to ensure a congressionally-established standard
of water quality. 33 U.S.C. §§ 1312(a), 1342(a).
The Act generally leaves regulation of non-point source discharges through
the implementation of TMDLs to the states. 33 U.S.C. §1329. It imposes on the
states planning responsibilities, including the preparation of a non-point source
management plan, commonly referred to as a § 319 report. Id. at § 1329(a). In
this report, a state must, among other things, identify waters where water quality
standards can reasonably be met only by additional action to control non-point
source pollution, and designate the categories and subcategories of non-point
sources that contribute to the pollution in those waters. Id. at § 1329(a)(1). States
also have to prepare a management program that identifies “best management
practices and measures” to reduce pollution. Id. at § 1329(b). EPA exercises
authority over these programs and must approve them. Once the programs have
been approved, EPA may make grants to the states to allow them to implement
the plans. Id. at § 1329(h).
Finally, a state has to prepare a “continuing planning process,” which is
essentially a plan for how the state is going to clean up pollution. Id. at §
1313(e)(1). Like the best management program, EPA has to approve or disapprove
10
each state’s continuing planning process and, once it has been approved,
occasionally review it to ensure it stays consistent with the Act. Id. at §1313(e)(2).
In preparing its continuing planning process, a state must incorporate established
TMDLs, see id. at § 1313(e)(3)(C).
To summarize, under the Clean Water Act, Georgia has the primary
authority and responsibility for issuing permits and controlling nonpoint source
pollution in that state. It also has both the authority and the duty to compile the list
of limited segments (the § 303(d) list), and establish TMDLs for each waterbody
on the list. EPA, for its part, has supervisory authority over various reports and
plans which the state is required by the Act to produce. EPA can also compile its
own list of limited segments and establish its own TMDLs, if the state’s efforts are
either inadequate or too long delayed.
The Consent Decree and Dispute in this Appeal
By the time Sierra Club sued EPA in 1994, sixteen years after the Act had
gone into effect, Georgia had established only two TMDLs for the approximately
340 limited segments identified in its 303(d) list, and the district court found that
neither of those two TMDLs satisfied the requirements of the Act. In the lawsuit,
Sierra Club asked the court to force EPA to establish the TMDLs and to implement
them, because Georgia had not done so. The district court granted summary
11
judgment for Sierra Club, Sierra Club v. Hankinson, 939 F.Supp. 865 (N.D. Ga.
1996), and entered an injunction requiring the EPA to both establish and
implement TMDLs for all Georgia limited segments by June 2001. Sierra Club v.
Hankinson, 939 F. Supp. 872 (N.D. Ga. 1996). The injunction directed EPA to
“implement (or ensure that the State implements)” TMDLs through the
modification, revocation, and re-issuance of permits. It also imposed a number of
other requirements on EPA, most of which had to do with making it exercise
supervision over Georgia’s water quality control efforts. EPA appealed to this
Court.
While EPA’s appeal was still pending, in July of 1997 the parties agreed
upon the terms of a consent decree and persuaded the district court to enter it,
which it did in October of 1997. In the consent decree, EPA was ordered to
establish TMDLs for the limited segments on Georgia’s § 303(d) list on a basin
approach if Georgia continued to fail to do so. Under a schedule set out in the
decree, all TMDLs were to be established by 2004, and additional, more specific
deadlines were included. The decree provided that by 1998, EPA was to establish
TMDLs for twenty percent of the waterways on Georgia’s 1996 list of limited
segments. These 1998 TMDLs are the ones that are the subject of this appeal, the
ones Sierra Club says EPA should have prepared an implementation plan for, but
12
they are only the first group of TMDLs that EPA was to establish under the terms
of the consent decree. The decree also required the EPA to establish TMDLs for
the remaining waterbodies on a river basin rotation schedule, if Georgia failed to
do so.
The basin rotation schedule was to begin in 1999, with TMDLs proposed for
all the basins by 2004.3 Besides establishing TMDLs, the decree imposed other
responsibilities on EPA, including: (1) review of Georgia’s continuing planning
process, (2) proposal of specific terms for Georgia/EPA Performance Partnership
Agreements, (3) biennial review of Georgia’s TDML program, and (4) submission
of annual compliance reports to the court and to the plaintiff groups.
EPA proposed 124 TMDLs for Georgia’s waterbodies in August of 1997
and attached them to the consent decree which the parties submitted to the district
court for its approval. Under the terms of the decree, those TMDLs were to be
“established, or finalized” within six months after being proposed. All but eight
were timely established by EPA, and even those eight were established after Sierra
Club filed a motion to force EPA to do so. Once EPA had established the TMDLs,
nothing else was done with them. Georgia did not incorporate the TMDLs into any
3
EPA’s performance in establishing the TMDLs for some of the water basins has been the
subject of other litigation under the consent decree, which has resulted in another decree further
defining EPA’s duties.
13
of its non-point source management plans or reports and did not implement them.
As a result, two years after entering into the consent decree, only one of the 124
waterbodies on Georgia’s 1996 § 303(d) list met water quality standards.
Dissatisfied with the progress made towards clean water in Georgia and with
EPA action or lack of it, in February 2000 Sierra Club moved the district court to
re-open the decree and to compel EPA to take further action. Specifically, Sierra
Club moved the court to order EPA to prepare implementation plans for the 124
TMDLs the agency had established in 1998.4 EPA argued in response that the
decree did not obligate it to prepare implementation plans for or to implement
TMDLs, and that the decree should not be modified to impose that responsibility
on it.
The district court deferred ruling on Sierra Club’s motion because Georgia
promised to develop implementation plans for the 124 TMDLs within nine months.
Within that time period, Georgia did develop implementation plans for all 124 of
those TMDLs. Because the plans which Sierra Club wanted EPA to develop had
now been developed by Georgia, EPA moved the court to dismiss as moot Sierra
Club’s motion to re-open and compel. Sierra Club argued that its motion was not
4
Sierra Club moved for other relief as well, but the request that EPA be required to
establish implementation plans is the only one involved in this appeal.
14
moot, because Georgia’s implementation plans were flawed or otherwise
unsatisfactory.
The district court denied the EPA’s motion to dismiss as moot Sierra Club’s
motion. In its order, the court ruled that “TMDL implementation plans are
required [of EPA] by the Consent Decree.” As for the Georgia-prepared plans, the
court ruled that EPA had “obligations” to “ensure” those plans were adequate.
The order did not, however, declare the Georgia plans insufficient. Instead, it
directed EPA and Sierra Club to confer about those plans and attempt to reach an
agreement concerning them. If their disagreements could not be resolved by
discussion, the order stated, the court would grant either party’s request for an
evidentiary hearing on the sufficiency of the Georgia plans.
EPA appealed the district court’s order and also filed an emergency motion
for stay pending appeal. In response to a jurisdictional question we issued to the
parties, Sierra Club contends that we lack jurisdiction because the district court’s
order denying EPA’s motion to dismiss on mootness grounds is not final so as to
be appealable under 28 U.S.C. § 1291, is not appealable under the collateral order
doctrine, and is not a modification of an injunction appealable under 28 U.S.C.§
1292(a)(1). Sierra Club also filed a motion to dismiss for lack of jurisdiction on
15
those grounds. EPA responded that this Court does have jurisdiction and,
alternatively, petitioned for a writ of mandamus.
II. DISCUSSION
A. Jurisdiction – the District Court Did Modify the Consent Decree
EPA contends that we have jurisdiction over this appeal under 28 U.S.C. §
1292(a)(1), which gives appellate courts jurisdiction to review interlocutory orders
of district courts “granting, continuing, [and] modifying” injunctions.5 Sierra Club
contends that we do not, because the district court did not modify the injunctive
relief provided for by the consent decree, but only interpreted the decree.6 If Sierra
Club is correct and the district court only interpreted the decree, we do not have
jurisdiction. See Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 280
F.3d 1289, 1292 (11th Cir. 2002).
We have said that in order to decide whether a district court’s order relating
to a prior decree falls within the grant of appellate jurisdiction under § 1292(a)(1),
5
The parties agree that the district court’s order denying EPA’s motion to dismiss Sierra
Club’s motion to enforce or modify the consent decree is not a final order as that term is used in
28 U.S.C. § 1291, and that the order does not fall within the collateral order doctrine. We
concur with them on those points. Accordingly, whether we have jurisdiction turns on 28 U.S.C.
§ 1292(a)(1).
6
The plaintiffs also contend that we lack jurisdiction on the ground that there is no
justiciable controversy, because the issue is not yet ripe. The district court’s interpretation of the
decree imposed on EPA a requirement to prepare implementation plans or ensure that the ones
prepared by Georgia satisfy the requirements of the Act. It ordered EPA to take action within 30
days, action that EPA insists it has no obligation to undertake. The matter is sufficiently ripe.
16
we must decide whether the order modified the decree in a “jurisdictionally
significant way.” Id. at 1292. A district court’s interpretation of a consent decree
operates as a modification when it changes the legal relationship among the parties.
Id. at 1293. This determination is not significantly affected by whether the district
court called its order an interpretation, as this district court did, or a modification.
See Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d
1529, 1539 (11th Cir. 1986) (“What matters, however, is not the district court’s
characterization of its order as amendatory or explanatory, but rather the actual
effect of the order on the obligations of the parties as set forth in the original
judgment.”).
If the district court’s order changes the legal relationship of the parties, it is a
modification of the decree, regardless of what it was called. As we explained in
Birmingham Fire Fighters, we do not engage in a fine point analysis of the original
decree and the later order. Instead, we take a fairly loose focus and ask whether
the district court’s reading of the consent decree is “a gross misinterpretation of the
decree’s original command,” one that “leaps from the page.” Birmingham Fire
Fighters, 280 F.3d at 1293. If so, then we have jurisdiction. Applying this test, our
starting point is to determine the legal relationship among the parties that the
consent decree itself established. The next step is to determine whether the district
17
court’s order changed that relationship in a “jurisdictionally significant way.” Id. at
1292.
As this Court has explained before, “As a general matter, the rules we use to
interpret a consent decree are the same ones we use to interpret a contract – since a
consent decree is a form of contract.” Reynolds v. Roberts, 202 F.3d 1303, 1312
(11th Cir. 2000). With a consent decree as with a contract, the first place we look
and often the last as well is to the document itself. The consent decree in this case
provided that if Georgia failed to establish TMDLs, EPA was required to do so.7
The decree defined a TMDL as having “the meaning provided at Section
303(d)(1)(C) of the CWA, 33 U.S.C. § 1313(d)(1)(C), and 40 C.F.R. § 130.2(i), as
codified as of the Effective Date of this Decree, or as subsequently amended.”
Neither the referenced statutory provision nor the referenced regulation includes
implementation plans within the meaning of TMDLs.8 The two are different, and
7
EPA agreed to establish the 1998 TMDLs, the ones that are the subject of this appeal,
without waiting on Georgia to fail to do so first. In July of 1997 the parties had agreed to the
terms of the consent decree, one of which was that in August EPA would propose for public
comment by August of 1997 TMDLs for twenty percent of the waterbodies in Georgia’s 1996
303(d) list. These TMDLs were attached to the consent decree when the parties submitted the
decree to the district court for its approval. The remaining TMDLs were to be developed by EPA
only after Georgia failed to do so.
8
The statutory provision says:
Each State shall establish for the waters identified in paragraph (1)(A) of this
subsection, and in accordance with the priority ranking, the total maximum daily load, for those
pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for
18
the statute and regulation incorporated into the definition part of the consent decree
reflect that difference. A TMDL is defined to be a set measure or prescribed
maximum quantity of a particular pollutant in a given waterbody, see 40 C.F.R. §
130.2(i), while an implementation plan is a formal statement of how the level of
that pollutant can and will be brought down to or kept under the TMDL.9
The consent decree clearly and explicitly places a number of duties on EPA,
including the requirement to establish TMDLs on a basin approach if Georgia fails
to do so, but it just as clearly does not require EPA to develop implementation
plans for those TMDLs once they are established. The decree contains seven pages
such calculation. Such load shall be established at a level necessary to implement the applicable
water quality standards.... 33 U.S.C. § 1313.
The regulation defines a TMDL as: “[t]he sum of the individual [wasteload allocations]
for point sources and [load allocations] for non-point sources and natural background.” 40
C.F.R. § 130.2(i).
9
Sierra Club attempts to escape this clear distinction between TMDLs and
implementation plans for them by arguing that implementation plans should be read into TMDLs
based upon EPA guidance documents and also a proposed rule that was withdrawn before it went
into effect. Putting aside any questions about whether those documents actually do define
implementation plans into TMDLs, the inescapable fact is that the consent decree does not,
because the decree does not define TMDLs by reference to any guidance documents or aborted
rule. Instead, the decree defines the term by reference to a specific statutory provision and a
specific regulation that is in effect, and neither of those two definitional sources indicates or
even implies that TMDLs include implementation plans. We find no ambiguity on the point in
either the statute or regulation, and because they are the sole source of the definition of TMDLs
in the consent decree they are all we look at to define the term. Cf. Babbit v. Sweet Home
Chapter of Communities for a Great Oregon, 515 U.S. 687, 697 n.10, 115 S. Ct. 2407, 2413
(1995) (refusing to apply the ordinary common-law meaning of a term when it was defined in
the statute). Given the clarity of the consent decree, we also decline Sierra Club’s invitations to
consider any extrinsic evidence on the issue.
19
setting out in detail EPA’s obligations under it, and conspicuously absent from the
list of those obligations is any mention of implementation plans. Indeed,
implementation plans are not mentioned at all anywhere in the 28-page decree. If
the parties had intended for the decree to put such an important and substantial
responsibility on EPA, they would have spelled that out just they spelled out its
responsibility to establish TMDLs.
The district court gave two reasons for finding that implementation plans
were required by the consent decree. First, it said that “[u]nder EPA’s
interpretation of the Consent Decree, TMDLs would be developed with no
guarantee that they would ever be implemented. Developing TMDLs without
implementing them amounts to an academic endeavor which would have no effect
on water quality in Georgia.” Or, as Sierra Club restates that concern, unless
implementation plans are read into TMDLs, the decree is reduced to “empty
formalism.” We doubt that, because TMDLs are a necessary step before any
implementation plans can be formulated. Interpreting the decree as written gives it
meaning, because establishing TMDLs is a meaningful and not necessarily simple
step in the process of controlling pollution in Georgia’s waterbodies. After all, in
sixteen years Georgia had established only two of the hundreds of TMDLs that
were necessary, and the adequacy of those two was questionable. The decree put
20
the TMDL task with all of its difficulties on EPA. The responsibility for
implementing the TMDLs once they were established was left to Georgia, as it is in
the Clean Water Act itself.
The second reason the district court gave for its conclusion that EPA was
required by the consent decree to establish implementation plans is that reading
that into the decree would further the goal of the Clean Water Act, which is cleaner
water. The court stated, “EPA’s interpretation is incompatible with the Clean
Water Act goal of improving water quality. Specifically, among the stated
objectives of the Clean Water Act is the following: ‘[I]t is the national policy that
programs for the control of nonpoint sources of pollution be developed and
implemented in an expeditious manner. . . .’”. Of course, the national policy and
objectives relating to clean water are most reliably embodied in the Act itself
which puts the responsibility for implementation of TMDLs on the states.
Logically, the Act cannot be a source of authority for changing the Act’s allocation
of responsibilities. Besides, the district court’s approach disregards the Supreme
Court’s instruction that “any command of a consent decree or order must be found
within its four corners, and not by reference to any purposes of the parties or of the
underlying statutes.” United States v. ITT Continental Baking Co., 420 U.S. 223,
233, 95 S. Ct. 926, 933 (1975) (quotations and citations omitted); see also United
21
States v. Atlantic Refining Co., 360 U.S. 19, 23, 79 S. Ct. 944, 946 (1959)
(rejecting a loose interpretation of the consent decree even though such an
interpretation might better effectuate the purposes of the acts assertedly violated);
Hughes v. United States, 342 U.S. 353, 356-57, 72 S. Ct. 306, 308 (1952)
(rejecting an invitation to advance the asserted purpose of the consent decree
through an interpretation of a consent decree not justified by the four corners of the
decree).
The Supreme Court has observed that consent decrees generally do not have
overarching purposes which can be used as guides to interpretation.10 For example,
in United States v. Armour & Co., 402 U.S. 673, 682, 91 S. Ct. 1752, 1757
(1971), the Court explained that because consent decrees are normally
compromises between parties with opposing positions in which each party gives up
10
While consent decrees should not be interpreted according to a broad, nebulous
purpose, in different contexts courts are called upon to decipher the purpose of some consent
decrees. For example, the Supreme Court has said that when considering whether an
institutional-reform decree or other similar decree should be modified, courts are to determine
whether the motion is to modify a term of the decree that is central to the basic purpose of the
decree. If it is, then modification is probably not appropriate. Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 387, 112 S. Ct. 748, 762 (1992) (“If modification of one term of a
consent decree defeats the purpose of the decree, obviously modification would be all but
impossible.”). See United States v. City of Miami, 2 F.3d 1497, 1504 (11th Cir. 1993) (“Thus, a
court faced with a motion to modify a consent decree in institutional reform litigation must begin
by determining the ‘basic purpose’ of the decree.”). But the purpose of the decree even in that
context is not to be conceived at too high a level of generality, and is not used as a basis to
expansively interpret the terms of the decree. In the case before us, the district court used what
is considered to be the purpose of the decree to interpret expansively the decree’s terms. That
should not be done.
22
their rights to litigation and to prove their position, consent decrees should be
interpreted as written, “and not as it might have been written had the plaintiff
established his factual claims and legal theories in litigation.” In this case, the
parties negotiated the terms of the decree and the timetable for TMDL
establishment and other relief within the framework of the statutory scheme set out
in the Act. The decree cannot be interpreted as requiring whatever might be
necessary and appropriate to achieve cleaner water, because it was not written that
way. It was written to bring about in a more expeditious and certain manner than
would otherwise have occurred one important step in the process, and it appears to
have achieved that goal or to have nearly done so.
This, then is the original relationship between the parties as established by
the consent decree: at Sierra Club’s insistence EPA was obligated to develop for
the State of Georgia TMDLs, as defined by the statutory and regulatory provisions.
The order we have before us declared that the consent decree went beyond that
and required EPA to develop not just TMDLs but implementation plans for
TMDLs. Because the decree as written and entered did not require EPA to prepare
implementation plans for the TMDLs, the district court’s order requiring EPA to
prepare them modified the decree because it changed the legal relationship of the
parties by “chang[ing] the command of the earlier injunction.” Birmingham Fire
23
Fighters, 280 F.3d at 1293 (internal quotations omitted). If a party obtains a decree
forcing another party to perform task A, and a later order adds task B, the legal
relationship between the parties has been changed by the later order. That is what
happened in this case. There was a change in EPA’s obligations, in the tasks with
which it was saddled. The law is that if the change is sufficiently obvious – if the
original decree did not even arguably require the additional task or obligation, so
that the district court’s interpretation of the decree is “blatantly or obviously
wrong” – then we have jurisdiction to review the order. Id. For the reasons we
have set out, we conclude that this is not a close call; the error in the district court’s
interpretation of the consent decree is obvious enough to give us jurisdiction to
review the resulting modification.
B. The District Court Abused Its Discretion
In Modifying the Consent Decree
Having decided that the district court obviously modified the decree when it
required EPA to prepare implementation plans, which gives us jurisdiction to
review its action, we turn now to the merits issue, which is whether the
modification was an abuse of discretion. Sierra Club contends that the
modification was within the district court’s discretion and points to several
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provisions in the decree which it says gives the district court the power to modify
it. One of those provisions says that the court retains jurisdiction over the action
and may issue orders to modify the terms of the decree and grant further relief as
justice requires. The other says that nothing in the decree “shall be construed to
limit the equitable powers of the Court to modify those terms upon a showing of
good cause by any party.” We do not read these boilerplate provisions as giving
the district court any more power to modify the decree than it already had under
Rule 60(b)(5) of the Federal Rules of Civil Procedure,11 as explicated by the
Supreme Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S. Ct.
748 (1992). The provisions confirm the court’s authority to modify the decree, but
that authority is still subject to the constraints set out in the Rufo decision. In that
decision the Supreme said that the party seeking modification of a consent decree
must show, first, “a significant change either in factual conditions or in law,” id. at
384, 112 S. Ct. at 760, and, second, that “the proposed modification is suitably
tailored to the changed circumstance.” Id. at 391, 112 S. Ct. at 763.
Sierra Club contends that there have been changes in both the law and
surrounding circumstances which justify the district court’s modification of the
11
Rule 60(b)(5) provides that a party may obtain relief from a court order when “it is no
longer equitable that the judgment should have prospective application.” Fed. R. Civ. P.
60(b)(5).
25
decree. It points to some guidance documents and a proposed rule published by
EPA as proof that the law has changed, but none of those documents or proposals
have the effect of law. As for guidance documents, they can modify neither
statutes nor regulations. To legally change its regulations, EPA must comply with
the rulemaking procedures set out in the Administrative Procedures Act. 5 U.S.C.
§§ 551-706. The method by which guidance documents are created does not even
come close to compliance with those procedures.
As for the proposed rule Sierra relies upon, it did not work a change in the
law because it has never been implemented and in fact has been withdrawn. EPA
proposed the new rule in 1999, see 64 Fed. Reg. 46012 (Aug. 23, 1999), and
published it as a final rule in July of 2000, see 65 Fed. Reg. 43586 (July 13, 2000),
but it was never implemented. Congress refused to appropriate the necessary funds
for implementation, which delayed things, see Pub. L. No. 106-246, 114 Stat. 511,
567 (2000), and then EPA withdrew the proposed rule. See 66 Fed. Reg. 41817
(Aug. 9, 2001). At no time was the new rule ever applied by EPA, and as things
stand, the relevant regulations related to the Act are the same as they were in 1997.
The statutory and regulatory regime – the applicable law – is the same now as it
was when the consent decree was entered. There has been no change.
26
Nor has there been a change in factual circumstances sufficient to justify the
district court’s modification of the decree. It is true that the state of Georgia is not
currently implementing the TMDLs established by EPA at the rate contemplated
by the Act, but Georgia has never carried out its responsibilities under the Act at
anywhere near the pace the Act contemplates. Georgia’s governmental lethargy in
this area is nothing new. Indeed, it was what Sierra Club calls “Georgia’s 16 year
failure and refusal to develop and implement the [TMDL] process for hundreds of
Georgia’s rivers, streams, lakes, and estuaries that were not meeting designated
standards for fishing, swimming, and drinking,” which led to the lawsuit. Brief of
Appellee Sierra Club at 3. A decree cannot be justifiably modified based upon the
theory of changed factual circumstances when the circumstances simply have not
changed.
Sierra Club contends that the district court was within its discretion in
modifying the decree because the decree had not achieved its purpose, and such a
failure can itself be a changed circumstance justifying modification. See Sizzler
Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529, 1539
(11th Cir. 1986); United States v. United Shoe Machinery Corp., 391 U.S. 244,
251-52, 88 S. Ct. 1496, 1501 (1968). That contention is based upon the premise
that the purpose of the decree was to achieve clean water in Georgia, a state of
27
affairs which everyone concedes is a long way off. But the purpose of the decree
was not nearly so ambitious. Clean water may have been Sierra Club’s
motivation, its reason for bringing the lawsuit to begin with, but the bargain it
struck with EPA which produced the consent decree was much more limited.
While the Clean Water Act sets out a process composed of several steps to
achieve clean water, the consent decree focuses on bringing about one of those
steps, the establishment of TMDLs, and it leaves attainment of the Act’s ultimate
goal of cleaning up the water to the statutory and regulatory scheme which requires
compliance by Georgia subject to some oversight by EPA. The consent decree
does not supplant the Act itself. Under the decree, Georgia is still responsible for
incorporating TMDLs, regardless of whoever establishes them, into its section
303(e) plan; Georgia is still responsible for incorporating TMDLs into its NPDES
permits; and Georgia is still responsible for implementing non-point source
pollution controls. EPA agreed only to a supervisory role with respect to some of
these implementation-related processes, but it did not agree to take over the
implementation process. The objective of the consent decree was the
establishment of TMDLs, not the much more long-term goal of clean water.
Nothing has changed to make the provisions of the consent decree
ineffective, and experience has not shown that the decree is incapable of achieving
28
its purpose. It is still capable of and is in fact accomplishing what the parties set
out to achieve with the decree: the establishment of TMDLs. If Sierra Club
wants more done to bring about clean water in Georgia, it will have to look
beyond the consent decree and to the Clean Water Act and regulations, and perhaps
to additional litigation, to achieve those worthy goals.
A party seeking to modify a consent decree has a high hurdle to clear and the
wind in its face. See, e.g., Reynolds, 202 F.3d at 1312 (“Long standing precedent
evinces a strong public policy against judicial rewriting of consent decrees.”).
Because Sierra Club has failed to clear that hurdle, the district court should not
have modified the decree in the course of interpreting it. It should have granted
EPA’s motion to dismiss Sierra Club’s motion to re-open the decree and to compel
action.
III. CONCLUSION
The district court’s order denying EPA’s motion to dismiss Sierra Club’s
motion to re-open and compel action is REVERSED, and this case is
REMANDED for further proceedings consistent with this opinion.
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30
Sierra Club v. John Hankinson
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2002-07-02
Citations: 296 F.3d 1021
Copy CitationsCombined Opinion