Individuals, governments, and corporations failing to recognize and follow environmental legislative mandates and regulations merely generate more costs and contribute to or exacerbate environmental degradation. Most certainly, courts play an important role and can be negative or positive drivers in remedying environmental wrongs.

As an example, take the case I recently read below discussing the Clean Water Act and Montana’s foot dragging in the development of total maximum daily loads or TMDLS under the Clean Water Act.  TMDLs represent “a value of the maximum amount of a pollutant that a body of water can receive while still meeting water quality standards.” From Friends of Wild Swan v. U.S. Envtl. Prot. Agency (emphasis added)

B. Appropriateness of District Court’s Deadline
The district court supported its schedule with the following finding:

The CWA declares as a national goal the elimination of pollutant discharges into navigable waters by the year 1985. See 33 U.S.C. § 1251(a)(1). To meet this goal, the CWA required states to promptly submit TMDLs for all WQLSs, with initial lists of TMDLs due in 1979. See 33 U.S.C. § 1313(d)(2). The tight deadline for submission of the TMDLs emphasizes an obvious congressional mandate that TMDLs be established in a matter of years, not decades. See Idaho Sportsmen’s Coalition v. Browner, 951 F.Supp. 962, 967 (W.D.Wa.1996). Montana failed to develop any TMDLs until 1996. In 1996, the state only identified 1 TMDL. In the nineteen years since 1979, Montana has developed 130 TMDLs. At its current pace, the state will need over one hundred years to develop the 3,000 TMDLs required for the WQLSs identified in 1998. The net result will be to put off for another generation a mandate that Congress required be taken years ago. Because TMDLs provide a basis for developing pollution control measures where technology-based point source controls prove inadequate, TMDLs must be developed quickly if they are to serve their intended purpose. See 33 U.S.C. § 1313(d)(1)(A); Browner, supra, 951 F.Supp. at 967. Montana’s submission of 130 TMDLs in 1998 fails to meet the CWA’s requirement that states promptly develop TMDLs for the WQLSs they identify. Accordingly, I find that the EPA acted arbitrarily and capriciously when it failed to disapprove of Montana’s inadequate submission of TMDL’s.

The court’s imposition of a schedule is also supported by Montana’s history of delay and EPA’s repeated failure to require the timely development of TMDLs as evidenced by numerous court orders and consent decrees across the country.

.       .       .

The district court has broad latitude in fashioning equitable relief when necessary to remedy an established wrong. Weinberger v. Romero-Barcelo 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). In this case the established wrong is the failure of the EPA to take any steps to establish the TMDLs mandated by Congress for more than a decade. In tailoring the relief granted, the district court correctly recognized that in order to bring about any progress toward achieving the congressional objectives of the CWA, the EPA would have to be directed to take specific steps. In selecting the remedy that it did, the district court acted with great restraint in requiring only that steps undeniably necessary to the development of TMDLs in Alaska be accomplished by deadlines that are far more lenient than those contained within the CWA itself.

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