Are Clean Rivers Too Expensive? Ninth Circuit Will Decide

Pollution threatens to make Montana’s rivers unfishable and unswimmable. Yet the EPA found the state doesn’t have to clean them up because doing so would be too expensive.

Paddleboarders float the Wild and Scenic portion of the Missouri River. (David Reese/CNS)

PORTLAND, Ore. (CN) — The U.S. Environmental Protection Agency let Montana excuse itself from requirements to protect world-class trout streams from pollution that creates toxic algal blooms. The reason? It would simply cost too much to protect rivers to the degree the law requires, attorneys told judges for the Ninth Circuit on Thursday.

In 2016, the Upper Missouri Waterkeeper sued the EPA in 2016, claiming it let Montana delay regulation of pollution from sewage plants and agricultural and urban runoff based on how much protection would cost.

The EPA pointed to language in the Clean Water Act that allows states to adopt “variances” to delay cleanup if “the pollution controls required to achieve the base water quality standards would lead to substantial and widespread economic and social impact.”

In July 2019, a federal judge agreed variances the EPA had approved allowing Montana to delay protection of its rivers didn’t guarantee compliance with the law, which requires the state to maintain water standards conducive to “designated uses” of the river, such as public health, fishing, swimming, boating, agriculture and industry. The court ordered Montana and the EPA to rewrite their plan based on a third-party expert’s assessment of when the legally required water quality standards could reasonably be attained.

Montana submitted a revised plan, but the EPA said the new plan wasn’t consistent with the court order and instead approved provisions Upper Missouri Waterkeeper deemed a “poison pill,” which substituted only “generic narrative standards for all waters and all pollutants,” the group said.

In October 2020, U.S. District Judge Brian Morris ordered the EPA to approve specific timelines that would bring delays approved in the variances in line with the Clean Water Act. EPA appealed, and on Thursday EPA attorney John Smeltzer defended the agency’s actions.

“The purpose of a variance is to provide progress toward the base water quality standards by setting milestones toward an attainable standard where the base water quality standard is not attainable and the regulation clearly states that the time period for the variance is the time needed to achieve those interim highest attainable condition requirements,” Smeltzer told a three-judge panel consisting of U.S. Circuit Judges Paul Watford, a Barack Obama appointee and Richard Paez, a Bill Clinton appointee, as well as Daniel Boggs, a Ronald Reagan appointee sitting by designation from the Sixth Circuit.

Kurt Moser, an attorney for the Montana Department of Environmental Quality, told the judges it was unreasonable for Judge Morris to require that the delay approved by the EPA end in compliance with the legal requirement to meet base water quality standards.  

“Montana can’t develop a variance term that ends with attainment of the base standards because doing so would cause substantial and widespread economic impact to its community,” Moser said.

And contrary to Morris’ finding that the EPA’s plan would allow Montana to delay meeting the standards indefinitely, Moser said the variance is “clearly time-limited” because it requires the state to periodically consider whether the justification for the variance remains valid.

But Janette Brimmer, attorney for Upper Missouri River Waterkeeper, told the judges that an indefinite delay was exactly what the EPA and Montana have in mind — with the current 20-year variance and potential future variances as well.

“Twenty years from now is when the pollutant dischargers have to meet the highest attainable condition,” Brimmer said. “And in fact, when one reads the language itself, you see that EPA and the state contemplate that maybe it will even be longer than 20 years. That in fact at the end of that 20-year period, we may see another 20-year variance. And in fact, they contemplate that maybe we’ll never get there because we may not want to spend the money necessary to protect designated uses.”

Addressing Brimmer, Judge Boggs cited Upper Missouri Waterkeeper’s appeal brief, which states: “The Clean Water Act does not allow cost considerations to drive water quality standards, directly or indirectly.”

He added: “I would ask you then, simply, that is your position — whether it would cost $10 million or $100 million or $1 trillion or $10 trillion, is that correct?”

Brimmer answered in the affirmative.

“That is correct, your honor, that the language of the statute does not provide for that,” Brimmer said. “Congress knows how to provide for that and has done so.”

She added that the phase of setting water quality standards was the wrong moment to consider costs. Instead, Brimmer said, costs could be considered when the agencies are developing a schedule of compliance with those protective standards. After, states can also apply for a use attainability analysis. Under that process, subject to strict standards and bars, a state or city can argue that it be allowed to protect certain waters, such as a cement-lined pond, to a less strict standard.

“But it’s got a lot of safeguards,” Brimmer said. “There are a lot of requirements that a state has to pass because we do not want, and Congress did not want someone to simply throw up their hands and say, ‘Well it’s going to be a little bit hard, so we don’t want to protect, for example, the pristine trout streams of the state of Montana.’”

The judges took the arguments under advisement.

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