Case Summary Citation

Upper Missouri Waterkeeper v. U.S. Environmental Protection Agency, 15 F.4th 966 (9th Cir. 2021)


State water quality standards developed under the Clean Water Act play a key role in curtailing the negative environmental, economic, and human health impacts of water pollution. Under the state water quality regulatory framework, EPA may grant variances to state standards should the state demonstrate the compliance with its standards is infeasible for a certain pollutant discharger or waterbody. Montana DEQ developed a variance for nutrients based on evidence that compliance with those standards would cause economic harm. EPA approved Montana's nutrient pollutant variance, and Upper Missouri Waterkeeper challenged EPA's approval on the grounds that the variance violates the Clean Water Act. The Ninth Circuit held that (1) EPA may consider the cost of implementing pollution control technology to attain compliance with state standards when approving variance requests, and (2) EPA properly interpreted its regulations as requiring compliance with the variance standard only at the end of the variance term. This note will explore how the decision may incentivize states to engage in a water quality race-to-the-bottom, sacrificing improvements in the name of cost, failing to protect the health of our nation's waters, and further exposing low-income communities to degraded resources.



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