Loren Remsberg · August 2008
76 GEO. WASH. L. REV. 1412 (2008)
In Northwest Environmental Advocates v. EPA, a group of environmental organizations asked the northern California district court to order the Environmental Protection Agency (“EPA”) to promulgate regulations governing the release of ballast water from ships in United States ports. EPA had previously exempted such discharges from regulation. In response, the court found that Congress clearly intended that EPA regulate ballast water discharges, under the Clean Water Act (“CWA”), despite the fact that the United States Coast Guard had promulgated and administered ballast water regulations pursuant to its own congressional mandate in the National Invasive Species Act of 1996 (“NISA”). The district court’s statutory interpretation of the CWA appears correct: EPA is without discretion under the CWA to decline to regulate the specific type of discharge that occurs when a ship docks at a United States port and releases its ballast.
In contrast, both the court’s choice of remedy and analysis of the dual regulatory regime is bound to ensue merit reflection. After finding EPA’s refusal to regulate ballast water discharge arbitrary and capricious, the court effectively commanded EPA to promulgate a regulatory regime governing ballast water discharge. Ballast water discharge, however, is not an unregulated field; EPA regulations would duplicate those currently administered by the U.S. Coast Guard. The court’s tidy dismissal of EPA’s challenges to such a dual system does not withstand closer scrutiny, which suggests that the judiciary may not be the appropriate entity to make such decisions. A comparison to the decisionmaking process used by the Office of Legal Counsel (“OLC”), an executive agency that resolves conflicts between agencies, demonstrates that the courts’ scope of review may be too narrow. This Essay confronts congressional mandates to two agencies, where one has traditionally regulated and the other has abstained, and asserts that courts should avoid remedies commanding the inactive agency to regulate until the agencies have had sufficient time to present the matter to Congress.
Part I of this Essay explains the Northwest Environmental opinion and the court’s interpretation of the CWA. Part I also describes the Coast Guard regulations of ballast water and the source of the Coast Guard’s authority to regulate. Part II considers the Northwest Environmental court’s conclusion that EPA regulation in conjunction with Coast Guard regulation is feasible. Finally, this Essay suggests that Congress is a more appropriate body to resolve questions about overlapping agency authority and that courts should abstain from imposing a remedy that effectively mandates the inactive agency to create a duplicative regulatory regime.
